- Historic Sites
Ordeal By Touch
Up until the last century in some parts of the country, a murderer’s guilt could legally be determined by what happened when he or she touched the victim’s corpse
April/May 1986 | Volume 37, Issue 3
In 1646 in the Massachusetts Bay Colony, Mary Martin was pregnant and unmarried. Her paramour was a married man, but it was her status as a single woman that determined the nature of her crime. She faced punishment, if her misdeed was discovered, only for fornication; had she been married, her crime would have been adultery, punishable by death.
The God of the Puritans of Massachusetts was the God of the Old Testament, and it was to His word that they looked in codifying their capital crimes. They cited passages in the Pentateuch as the authority for fourteen of the fifteen crimes punishable by death. On the subject of adultery the Book of Leviticus was clear: “And the man that committeth adultery with another man’s wife, even he that committeth adultery with his neighbour’s wife, the adulterer and the adulteress shall surely be put to death.” The law in Massachusetts provided that “if any person commit ADULTERIE with a married, or espoused wife; the Adulterer & Adulteresse shall surely be put to death.” In England adultery was committed whenever either party to the act was married, but the penalties rarely exceeded a small fine and penance.
The Puritans found no authority in the Bible for treating fornication—as defined by them—as harshly as adultery. Thus in 1642 it was decreed that if “any man shall commit Fornication with any single woman, they shall be punished either by enjoyning to Marriage, or Fine, or Corporall punishment, or all or any of these as the Judges in the Courts of Assistants shall appoint most agreeable to the word of God.” With no threat of hanging facing her, it may be wondered why Mary Martin murdered her newborn child.
Mary had lived with her sister in Casco Bay in the care of a Mr. Mitton after their father left for England. Mr. Mitton, wrote Gov. John Winthrop, “was taken with her, and soliciting her chastity, obtained his desire, and having divers times committed sin with her, in the space of three months, she then removed to Boston, and put herself in service to Mrs. Bourne; and finding herself to be with child, and not able to bear the shame of it, she concealed it.”
The child—a girl—was delivered by Mary without assistance in a back room of Mrs. Bourne’s home on the night of December 13, 1646. Recovering from her labor, Mary Martin “kneeled upon the head of it, till she thought it had been dead, and having laid it by, the child, being strong, recovered, and cried again. Then she took it again, and used violence to it till it was quite dead.” Mary then hid the child’s body in a chest, cleaned the room, and retired to her bed. She continued with her household duties for a week and then moved to another home upon the Bourne family’s return to England. She carried with her the chest containing her daughter’s dead body.
A midwife who had suspected the pregnancy confronted Mary, and the hapless young woman, doubtless overcome by guilt, admitted the birth. She had delivered a stillborn child, she said, and had burned it. But her possessions were searched, and the dead child was found; Mary and her daughter’s corpse were quickly brought before a jury, which ordered her to endure the ordeal by touch: she was required to touch the face of the dead child. When she did, “the blood came fresh to it,” and Mary then “confessed the whole truth.” To corroborate the results of the ordeal and the admission of guilt, a surgeon, “being called upon to search the body of the child, found a fracture in the skull.” Mary Martin was hanged on March 18, 1647.
The curious means by which her guilt was ascertained—or her confession obtained—was not unique to her case or to the Massachusetts Bay Colony or to the seventeenth century. The historian Henry C. Lea wrote in 1866 of the hold which this belief still maintained over the “credulous minds of the uneducated. … The Philadelphia journals mention a case [in 1860] in which the relatives of a deceased person, suspecting foul play, vainly importuned the coroner, some weeks after the interment, to have the body exhumed, in order that it might be touched by a person whom they regarded as concerned in his death.” Not many years later, Mark Twain wrote in Tom Sawyer : “Injun Joe helped to raise the body of the murdered man and put it in a wagon for removal; and it was whispered through the shuddering crowd that the wound bled a little. The boys thought that this happy circumstance would throw suspicion in the right direction. …”
Nor was the Mary Martin incident the first use of the ordeal in the Massachusetts Bay Colony. Two years before her case arose, Governor Winthrop reported that a Mr. Cornish had been “taken up in the river, his head bruised, and a pole sticking in his side, and his canoe laden with clay found sunk. His wife (being a lewd woman and suspected to have fellowship with one Footman) coming to her husband, he bled abundantly, and so he did also, when Footman was brought to him; but no evidence could be found against him. … The woman was arraigned … and the strong presumptions came in against her, whereupon she was condemned and executed. She persisted in the denial of the murder to the death, but confessed to have lived in adultery with divers.”