The ordeal was thoroughly and completely a judicial process, ordained by the law for 부천밤문화 certain cases, and carried out by the tribunals as a regular form of ordinary procedure. From the earliest times, the accused who was ordered to undergo the trial was compelled to submit to it, as to any other decree of court. Thus, by the Salic law, a recusant was summoned to the royal court; and if still contumacious, he was outlawed and his property confiscated, as was customary in all cases of contempt.1208 The directions of the codes, as we have seen, are generally precise, and admit of no alternative.1209 Occasionally, however, a privilege of selection was afforded between this and other modes of compurgation, and also between the various forms of ordeal.1210

There was, however, a remarkable exception to this enforcement of the ordeal in a provision existing in some codes by which a man condemned to it could buy himself off by compounding with his adversary. This mode of adjustment was not extensively introduced, but it nevertheless existed among384 the Anglo-Saxons,1211 while among the Franks it was a settled custom, permitted by all the texts of the Salic law, from the earliest to the latest.1212 By this a person condemned by the court to undergo the ordeal could, by a transaction with the aggrieved party, purchase the privilege of clearing himself by canonical purgation, and thus escape the severer trial. He was bound to pay his accuser only a portion of the fine which he would incur if proved guilty—a portion varying with different offences from one-fourth to one-sixth of the wer-gild. The interests of the tribunal were guarded by a clause which compelled him to pay to the grafio, or judge, the full fredum, or public fine, if his conscience impelled him to submit to an arrangement for more than the legal percentage. Even as late as 1229, by the Bohemian laws of Ottokar Premislas the accused could escape the ordeal by paying seven deniers to the seigneur.1213

The circumstances under which its employment was ordered varied considerably with the varying legislations of races and epochs; and to enter minutely into the question of the power of the court to decree it, or the right to demand it by the appellant or the defendant, would require too much space, especially as this has already been discussed at some length with regard to one of its forms, the wager of battle. In India, the accused was required to undergo the risk of a fine if he desired to force his adversary to the ordeal; but either party could voluntarily undertake it, in which case the other was subject to a mulct if defeated.1214 The character of the defendant, however, had an important bearing upon its employment. If he had already been convicted of a crime or of perjury he was subject to it in all cases, however trifling; if, on the other hand, he was a man of unblemished reputation, he was not to be exposed to it, however important was the385 case.1215 In civil cases, however, it apparently was only employed to supplement deficient evidence.—“Evidence consists of writings, possession, and witnesses. If one of these is wanting, then one of the ordeals is valid.”1216

In Europe there appears at times to have been a custom under which, when the accused had escaped in the ordeal, the accuser was obliged to undergo it. Thus in the Frisian law, when a man accused of theft proved his innocence by the ordeal, the accuser was then obliged to clear himself of the charge of perjury by a similar trial,1217 but the law fails to define what are their respective positions if the second ordeal proves likewise innocuous. In the case of bier-right quoted above from Scott’s Border Minstrelsy, this secondary ordeal seems to have been to prove whether the accuser herself was not the guilty person. In the heroic poems of the Elder Edda a similar trial appears to be resorted to, as in the Frisian laws, only for the purpose of showing the false witness borne by the accuser. When Gudrun the wife of Atli is defamed as an adulteress by the concubine Herkia, and is forced to the ordeal—

She to the bottom plunged
Her snow-white hand,
And up she drew
The precious stones.
“See now, ye men,
I am proved guiltless
In holy wise,
Boil the vessel as it may.”
Laughed then Atli’s
Heart within his breast
When he unscathed beheld
The hand of Gudrun.
“Now must Herkia
To the cauldron go,
She who Gudrun
Had hoped to injure.”
No one has misery seen
Who saw not that,
How the hand there
Of Herkia was hurt.
They then the woman led
To a foul slough.
So were Gudrun’s
Wrongs avenged.1218
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 examples387 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 say389 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.