“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 examples 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 say that the accused is suspected of the crime, he is ordered at once to the ordeal.[1230]