since no traces of this practice can be found in the records of antiquity, we must seek for its origin in more modern times, and we shall find that it arose from an association of brute courage with superstition of the most credulous and degrading nature. in those rude ages when personal valour and prowess were considered the greatest qualifications for public and private estimation, the strongest was sure to rule. religion and love, two of the most mighty levers of mankind, were soon associated to warrant the commission of the most ruthless excesses, and the palm of victory was supposed to be suspended over the head of each combatant by the deity and woman: a just cause could be maintained by the sword alone, and true love only proved by the lance.

the barbarous courage of the northern nations has been fully illustrated by their historian tacitus, and it was their firm belief that both public and private quarrels could only be decided 22 by single combat; when we consider that these savage and superstitious hordes afterwards overran the whole of europe, the practice of a personal appeal to arms may be easily traced to their irruption in the fifth century, when their innumerable masses poured forth from their ancient and gloomy forests, to seek a more congenial clime, and a more profitable field for the display of their overwhelming power. the anglo-saxons inundated the british isles; while the lombards, the suevi, the vandals, the visigoths and ostrogoths, established their iron sway in italy, spain, portugal, and sarmatia.3

thus did these barbarians establish an universal militarism, the parent of feudality—its first-born offspring, when only two classes were recognised in society—the powerful and the weak—the lord and the villain. the soldier and the militant priest reigned with despotic rule; all learning and intellectual improvement were considered hostile to their mighty power, and every institution that they framed was consistent with ignorance and barbarity.4 23

to give their decrees a greater moral weight, they were clothed with the sanctity of a divine law. the sword was considered the only mode of arbitrating between right and wrong. whatever the priest had stigmatized by bell, book, and candle, was considered detestable in the eyes of god, and therefore doomed to worldly destruction: plunged in an abyss of apathetic stupidity in all matters where judgment should have decided, or hurried headlong by a vortex of superstitious fears, man had no light to guide him but the ignis fatuus of bigotry.

all these barbarous races knew no other mode of deciding differences but that of brute force. tacitus informs us that, when a tribe of germans contemplated a war with any neighbouring race, they endeavoured to take one of them prisoner, and, by setting the captive to fight one of their own people, formed an idea of their chances of success. plutarch informs us that alexander tried the same expedient ere he commenced his attack on darius.5 24

in vain had the romans endeavoured to civilize the cimbri and the teutones. in vain did varus seek to arbitrate amongst them, and terminate their bloody feuds; if, for a moment they seemed to yield to his suggestions, it was the better to conceal their preparations for the destructive insurrection they meditated.

a speedy recourse to arms must have been the natural result of any difference that arose amongst men who never assembled but in warlike array, whether the object of the meeting was public or private: and, superstition inducing them to believe that the gods would shield the innocent, an “ordeal” was established, by which the accuser was to make good his assertions, and the accused defend his innocence; and these combats were thence called judicial.6

the first legal establishment of these ordeals is to be found in the laws of gundebald, king of the burgundians, a. d. 501. this law enacted that gundebald, being fully convinced that many of his “subjects suffered themselves to be corrupted by their avarice, or hurried on by their 25 obstinacy, so as to attest by oath what they knew not, or what they knew to be false: in order to put a stop to such scandalous practices, whenever two burgundians are at variance, if the defendant shall swear that he owes not what is demanded of him, or that he is not guilty of the crime laid to his charge; and the plaintiff, on the other hand, not satisfied therewith, shall declare that he is ready to maintain, sword in hand, the truth of what he advances; if the defendant does not then acquiesce, it shall be lawful for them to decide the controversy by dint of sword. this is likewise understood of the witnesses of either party; it being just that every man should be ready to defend with his sword the truth which he attests, and to submit himself to the judgment of heaven.”

to a certain extent, to the shame of the civilized world be it said, this savage and absurd decree is acted upon in the present age!

the manner in which these judicial combats 26 were carried on was equally ferocious and disgusting. “the accuser was with the peril of his own body to prove the accused guilty; and, by offering his glove, to challenge him to this trial, which the other must either accept, or else acknowledge himself culpable of the crime whereof he was accused. if it were a crime deserving death, then was the combat for life and death either on horseback or on foot. if the offence only deserved imprisonment, then was the combat accomplished when the one had subdued the other, by forcing him to yield, or disabling him from defending himself. the accused had the liberty to choose a champion in his stead; but the accuser must appear in his own person, and with equality of weapons. no women were allowed to behold the contest, nor male children under the age of thirteen. the priests and the people did silently pray that the victory might fall on the guiltless; and, if the fight were for life or death, a bier stood ready to carry away the dead body of him who should be slain. none of the people might cry out, shriek, make any noise, or give any sign whatever; and hereunto, at hall in suevia, (a place appointed for a camp-fight,) was so great a regard taken, that the executioner stood beside the judges, ready with his axe to cut off the right hand and left foot of any party so offending. he that, being wounded, did yield himself, was at the mercy of 27 the other, to be killed or allowed to live: if he were slain, he was buried honourably, and he that slew him reputed more honourable than before; but if, being overcome, he was left alive, then was he declared by the judges void of all honest report, and never after allowed to ride on horseback or to carry arms.”

in later days, the burgundians, faithful to their early institutions, and the flemish citizens governed by the duke of burgundy, used to settle their disputes in a manner somewhat similar. in imitation of the ancient athlet?, who anointed their bodies with oil, these worthies smeared themselves over with tallow or hog’s lard, and then, with a buckler and club, fell to; having first dipped their hands in ashes, and filled their mouths with honey or sugar. they then contended until one of the parties was killed,—and the survivor was hanged for his trouble.

as civilization improved, the ladies were allowed to witness these exhibitions; and a curious duel is related by brant?me. at the coronation of henry ii, a dispute arose between a baron des guerres and a certain seigneur de faudilles, and they applied for a “field” to settle the quarrel: the sovereign, however, had made a vow not to sanction any duel since the death of his favourite de la chasteneraye; and they therefore met at sedan, which was under the sovereignty of monsieur de bouillon. the combatants appeared 28 after all due preparation; le sieur de faudilles having lighted a fire and set up a gallows, to the which he intended to suspend the corpse of his antagonist. they were both attended by their parrains; the baron being armed with a peculiar sort of sword, called épée batarde, the dexterous use of which had been taught him by a cunning priest. the action commenced, when faudilles ran his sword through the baron’s thigh, and inflicted a large wound that bled most profusely; then, throwing away the sword, a wrestling match ensued, the baron being very expert in this exercise, which had been taught him by a priest of brittany, a chaplain of cardinal de lennicourt. both parties now belaboured each other furiously, although from loss of blood the baron was every moment becoming more weak; until a scaffolding, upon which were collected a vast throng of ladies and elderly gentlemen assembled to see the fight, broke down with a tremendous crash. the outcries and shrieks of the ladies, with limbs bruised and fractured, added to the general uproar, the bystanders not knowing whom they should first assist,—the combatants, who, sprawling on the ground, were still pummelling each other; or the affrighted ladies: while the relations and friends of the baron, perceiving that he was becoming more enfeebled, roared out, “throw sand in his eyes and mouth—sand—sand in his eyes and mouth!” 29 which advice they dared not have given but for the interruption of the fall of the scaffolding; for the bystanders were not allowed to speak, move, or even blow their noses: the baron took the hint, and lost no time in seizing a handful of sand, and cramming it into the eyes and mouth of his opponent, who gave in, amidst the loud shouts of the spectators, some approving and others blaming the stratagem; the baron’s friends asserted that his opponent had yielded, which his party as firmly denied; and had it not been for m. de bouillon, the judge of the “field,” both parties would have come to blows.

these barbarous ordeals and judicial combats were managed with great solemnity: the ground being selected, as we have seen in the last duel, a large fire was kindled, and a gallows erected for the accommodation of the vanquished; two seats, covered with black, were also prepared for the combatants, on which they received certain admonitions, and were made to enter into various obligations, such as to swear on the holy evangelists that they had not had recourse to any sorcery, witchcraft, or incantation. each combatant selected his seconds, who were styled parrains, or godfathers, and who at first had no other duties to perform than to guard with vigilance the rights and privileges of their principals, but who were afterwards obliged either to support or to avenge their champion. this practice arose in 30 france, amongst the “mignons” of henry iii, in 1578, having been introduced from italy.

these preliminaries settled, the champions were to take god, the virgin mary, and all the saints, more especially monsieur st. george, chevalier, to witness that their cause was a just one, and that they would maintain it; having previously attended the celebration of mass, the forms of which are still to be found in certain old missals, where it is called missa pro duello. the advantages of ground, wind, and sun, were then fairly divided; and, not unfrequently, sweetmeats and sugar-plums were distributed at the same time. the arms of the combatants were next measured; and, when they had taken their ground, the marshal of the “field” exclaimed “let go the good champions!” during the fight no one was allowed to speak, to cough, spit, sneeze, blow his nose, or, in short, do anything that could possibly disturb the combatants, or communicate a preconcerted signal or advice.

the weapons admitted in these meetings were a double-edged straight sword, a cuirass, a buckler, and a lance when the combatants were mounted. villains were only allowed to decide their differences with cudgels.

in the reign of st. louis (1283), these combats not only took place between the principals, but were allowed between one of the parties and the witnesses of his opponent; and, in 31 the event of such witness being discomfited, his evidence was considered perjury. the latitude of impeaching an accusation went further; for the accused, found guilty upon evidence, could sometimes tell the judge that he had asserted a falsehood, in which case he was obliged to give him satisfaction sword in hand.

the form of denial was most eloquent:—“thou liest, and i am ready to defend my body against thine; and thou shalt either be a corpse or a recreant any hour of the day: and this is my gage.” so saying, the appellant knelt, and presented a glove, or some other gage, to his accuser.

this privilege granted the accused, was, however, only allowed when the judge was not his lord or suzerain; in the which case, his presuming to doubt his judgment and hereditary wisdom was not deemed a felony; for, in other cases, as desfontaines has it, “between thee, my lord, and thy villains, there is no other judge than god.”

in certain cases of physical inability, and where women and the clergy were concerned, a battle by proxy was allowed; and regular bravoes, called champions, were employed,—a trade rather perilous, since their right hand was lopped off in the event of their being worsted, perhaps to encourage their companions to more zeal on the behalf of their clients, or more dexterity. the case of the principals was not much pleasanter; 32 for, while their champions were discussing the point, they were kept out of the lists with a rope round their necks, and the one who was beaten by proxy was forthwith hanged in person, although in certain cases they were indulged with decapitation.

a gentleman could call out a villain, but the villain had not the slightest right to demand satisfaction from his superior; therefore he had no other resource than an appeal to the trial of hot iron, and water boiling or cold, which was conducted in the following manner:

in the trial by hot iron, the defendant was obliged to hold a heated plate of iron for a certain time in his hand; his hand was then bandaged, and a seal affixed upon it. when this dressing was raised three days after, if any burn was apparent, his cause was lost. it appears that proxies with hands callous and fireproof were often procured for this operation.7

in the trial by hot water, the accused was ordered to withdraw a consecrated ring from a vessel filled with boiling water. in the ordeal of cold water, the patient was thrown into a pond with his hands and feet tied up. if he did not sink, his guilt was evident; inasmuch as, the water having previously received a priest’s blessing 33 in latin, its refusal to receive the patient was a convincing proof of his unholiness and criminality.

there was another test of guilt, called the ordeal of the cross. the prisoner having declared his innocence upon oath, and appealed to the judgment, two sticks were prepared exactly like each other, and the figure of the cross was cut upon one of them; each of them was then wrapped up in wool, and placed upon a relic on the altar. after proper prayers, a priest took up one of the sticks; and, if it was the one that bore the sign of the cross, the accused was proclaimed innocent. there was another ordeal of the cross, resorted to in civil cases. the judges, parties, and all concerned, being assembled in a church, each of the parties chose a priest, the youngest and stoutest he could find, to be his representative in the trial. these representatives were then placed one on each side of some famed crucifix, and, a signal given, they both at once stretched their arms at full length, so as to form a cross with their bodies. in this painful posture they continued to stand while divine service was performing; and the party whose representative dropped his arm first, lost his cause. under charlemagne, this trial took place to settle litigations on account of children; but, under louis le debonnaire, it was confined to ecclesiastical disputes.

it is somewhat curious, that similar ordeals 34 have been practised by various nations in modern times, who, in all probability, never heard of these ancient absurdities. in the kingdom of siam, both in criminal and in civil causes, the parties are made to swallow certain pills; and the one that is first affected is considered convicted. in thibet the plaintiff and defendant are made to take out of a vessel filled with boiling water a black and a white counter; the one who has the good luck to draw the white prize is declared innocent, although both parties are generally so scalded as to be crippled for the remainder of their days.

it appears that the trial by ordeal was an ancient usage amongst the hindoos, and continues to this day to be practised in nine different ways: 1, by the balance; 2, by fire; 3, by water; 4, by poison; 5, by cosha, or water in which an idol has been washed; 6, by rice; 7, by boiling oil; 8, by red-hot iron; and 9, by images.

1. the ordeal by balance is thus performed. the beams having been adjusted, the cord fixed, and both scales made perfectly even, the person accused and a pundit fast a whole day. after the accused has been bathed in sacred water, the horna, or oblation, presented to the fire, and the deities worshiped, he is carefully weighed; and, when he is taken out of the scale, the pundits prostrate themselves before it, pronounce a certain mentra, or incantation, agreeably to the sastra; and, having written the substance of the accusation 35 on a piece of paper, bind it on his head. six minutes after they place him again in the scale; and, if he weigh more than before, he is held guilty; if less, innocent; but, if exactly the same, he must be weighed a third time, when, as it is written in the mitacshera, there will certainly be a difference in his weight. should the balance, though well fixed, break down, this circumstance would be considered as a damning proof of criminality.

2. in the fire ordeal, an excavation nine hands long, two spans broad, and one span deep, is made in the ground, and filled with a fire of pippal wood. into this the person accused must walk bare-footed; and, if his foot be unhurt, they hold him guiltless.

3. the water ordeal is performed by causing the person accused to stand in a certain depth of water, either flowing or stagnant, sufficient to reach his middle; but care is taken that no ravenous animal be in it, and that it be not moved by much air. a brachman is then directed to go into the water, holding a staff in his hand; and a soldier shoots three arrows on dry ground from a bow of cane. a man is then despatched to bring the arrow that has been shot the farthest; and, after he has taken it up, another is ordered to run from the edge of the water: at which instant, the person accused is told to grasp the foot, or the staff, of the brachman, who stands near him in the water, and immediately to dive. he 36 must remain under water till the two men who went to fetch the arrows are returned; for, if he raise his head or body above the surface before the arrows are brought back, his guilt is considered as fully proved. a peculiar species of water ordeal prevails on the coast of malabar: a person accused of any enormous crime is obliged to swim over a large river abounding with crocodiles, and, if he escapes unhurt, he is esteemed innocent.

4. the trials by poison are of two sorts. in the first, the pundits having performed their horna, and the accused person his ablution, two rettis and a half, or seven barleycorns, of vishanaga, a poisonous root, or of sanc’hya, or white arsenic, are mixed in eight marhas of clarified butter, which the accused must eat from the hand of a brachman. if the poison produce no effect, he is declared innocent.

in the second method, the hooded snake, called naga, is thrown into a deep earthen pot, into which is dropped a ring, coin, or seal. this the accused person is ordered to take out; and, if the serpent bite him, he is pronounced guilty.

5. in the trial by cosha, the accused is made to drink three draughts of the water in which the images of the sun, devi, and other deities have been washed for that purpose; and if within fourteen days he has any sickness or indisposition, his crime is considered as proved. 37

6. in the trial by rice, which is resorted to under accusation of theft, some dry rice is weighed with the sacred stone called salgram, or certain slocas are read over it; after which the suspected persons are severally ordered to chew a quantity of it. as soon as they have chewed it, they are to throw it on some leaves of the pippal, or, if none be at hand, on some b’hurja patra, or bark of a tree from nipal or cashmere. the man from whose mouth the rice comes dry, or stained with blood, is holden guilty.

7. in the ordeal by hot oil, the ground appointed for the trial is cleared, and rubbed with cow-dung; the next day, at sun-rise, the pundit worships ganesa, or the hindoo janus; presents his oblations, and pays adoration to other deities, conformably to the sastra. then, having read the incantations prescribed, he places a covered pan of gold, silver, copper, iron, or clay, sixteen fingers broad, and four fingers deep, and throws into it one s’ér or eighty sicca weight of clarified butter or oil of seramurz. after this a ring of gold, silver, or iron, is cleaned, washed with water, and cast into the oil, which they proceed to heat, and, when it is very hot, put into it a fresh leaf of pippela or of bilna. when the leaf is burned, the oil is known to be sufficiently hot. then, having pronounced a metra over the oil, they order the accused to take out the ring; and if he withdraw it without being burnt, or 38 without a blister on his hand, his innocence is considered evident.

8. in the red-hot iron trial, an iron ball, or the head of a spear red-hot, is placed on the hand of the accused.

9. to perform the ordeal by dharm’anch, an image named dharma, as the genius of justice, is made of silver, and another called adharma, of clay or iron, both of which are thrown into a large earthen jar; the accused, having thrust his hand into it, is acquitted if he draw forth the silver image, but condemned if he bring out the iron. in another form of this trial, the figure of a deity is painted on white cloth, and another on black; the first of which is named dharma, and the second adharma. these are severally rolled up in cow-dung, and thrown into a large jar, without having been shown to the accused, who must put his hand into the jar, and is acquitted or convicted as he draws out the figure on the white or black cloth.

a strange and poetical method of deciding a quarrel is said to be adopted in greenland: each of the parties is obliged to sing in public a satirical attack against his opponent, and the production which is considered the most virulent, or which excites the most mirth, is deemed conclusive.

the practice of ordeals may be traced to the remotest antiquity. in sicily, near the temples 39 of the palici, were two pools of sulphureous water, supposed to have sprung from the earth when these deities were born; the most solemn oaths were taken near these springs by those who had quarrels to decide. these oaths being inscribed were thrown into the mystic waters; if they floated upon the surface, innocence was proved, and the perjured was instantly punished in some supernatural manner. when both their tests remained buoyant, the oracle was to decide, and the altars of the palici were constantly polluted by human sacrifices.

amongst the jews, women accused of adultery were obliged to drink water in which ashes had been mixed. grotius mentions many instances of water ordeal in bithynia, sardinia, and other countries.

these ordeals were distinguished into the judicium dei, or judgment of god, and the vulgaris purgatio.

the first account we have of the appeal to the fire ordeal as a proof of innocence, is that of simplicius bishop of autun, in the fourth century. this prelate, as the story is related, before his promotion to the episcopal dignity, had married a wife, whom he fondly loved, but who, being unwilling to leave him after his clerical preferment, continued to sleep in the same chamber with him. the sanctity of simplicius suffered materially, at least on the score of fame, by the 40 constancy of his wife’s affection; and it was rumoured that the holy man, though a bishop, persisted, in opposition to the canonical laws, to taste the sweets of matrimony. upon which his wife, in the presence of a great concourse of people, took up a considerable quantity of burning coals, which she applied to her breast, without the least hurt to her person or garments. it is needless to add that this was a sufficient proof of her husband’s innocence. in the fifth century, st. brice went through the same trial on a similar occasion.

the ordeal of hot water was resorted to by lothair the husband of teutberge, daughter of a duke of burgundy, who was accused of incest with her brother, a monk and deacon; for the which he sought a dissolution of his marriage, that he might wed his mistress valrade. the poor queen immediately justified herself by proxy, getting her attorney-general to draw out a blessed ring from a kettle of hot water; but the obdurate king swore that her champion had recourse to witchcraft or cunning, and was possessed of some secret that rendered him proof against hot water. others, however, were not so incredulous; and her innocence was proclaimed as having been confirmed by a divine judgment, although it appears that the queen had confessed her guilt to her confessor. to decide therefore between a supposed divine judgment 41 and an admission of her offence became a matter of such a ticklish nature, that it was very properly submitted to the consideration of two ecclesiastical councils, who thereupon pronounced a divorce.

howbeit, pope nicholas i, who of course must have known more of the business than any other earthly power, annulled the decision, and excommunicated and anathematized goutier, the archbishop of cologne, who had had the impudence to advocate the divorce; but this refractory prelate’s subsequent conduct showed his criminality, for he thus animadverts on the pontiff’s act: “although our lord, nicholas, whom people call pope, has thought proper to excommunicate us, we defy his nonsense.” then, having the presumption to address his holiness personally, he adds: “and let me tell you, we will not receive your cursed sentence—we despise it; we fling you from our communion, being perfectly satisfied with that of our bishops and our brethren, whom you affect to despise.”

this insolent message was carried to rome by a brother of the archbishop, who, sword in hand, laid the protestation on the very sepulchre that, according to tradition, contains the remains of st. peter. nevertheless, the pontiff being succeeded by adrian ii, the doughty archbishop thought it more prudent to submit to the power of the vatican; and therefore, despite his brother’s 42 gasconading over st. peter’s sepulchre, addressed the supreme head of the church in the following highly decorous and respectful language:

“i declare before god and all the saints, more especially to you, my lord, adrian, sovereign pontiff, and to all the bishops that are submitted to your authority, as well as to the omnipresent, that i humbly submit myself to the excommunication and dismissal canonically inflicted upon me by pope nicholas,” &c. &c.

adrian, thus satisfied, forthwith excommunicates lothair’s second wife, and orders that prince immediately to take back his former spouse. of course, all europe was in a state of commotion. the emperor, louis ii, uncle of lothair, takes his part against pope adrian, whom he dares to threaten with an invasion; and all italy is in a state of alarm. queen teutberge sets off for rome, so does valrade her rival, lothair’s second wife and his ex-mistress; but her conscience did not allow her to pursue her journey, and her excommunicated husband was obliged to repair to rome to ask the pope’s pardon, not from any apprehension of his holiness, but the fear of his uncle, surnamed the bald, who espoused the pontiff’s cause, put his threat into execution, and stripped his majesty of the kingdom of lorraine.

it appears that adrian ii. was a very fastidious 43 and punctilious man, and he would not receive lothair back into the bosom of the church, despite his most abject excuses, until he swore to him that, since his predecessor nicholas had thought proper to order him not to keep up any further connexion with valrade, he had in every sense of the injunction, both in letter and spirit, obeyed the order. to this, lothair swore most religiously; and, having done so, he was re-admitted into the pale, and shortly after died. historians agree, and there can be no doubt on the subject, that his death was the just punishment of his perjury; what confirmed the fact was, the circumstance that all his followers who had taken a similar oath (although it is somewhat curious to know how they could have obtained any satisfactory information on so delicate a subject) died in the course of the same year.