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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
It is not surprising that a society that regarded witchcraft as a fact of life and condemned its practitioners to the gallows would equally accept this supernatural means of identifying those guilty of murder. George Lee Haskins points out in Law and Authority in Early Massachusetts that the Puritans of the Bay Colony were Englishmen who brought to the New World those customs and beliefs they had known in the Old. Moreover, “the hand of God was everywhere and in everything,” as the historian Charles M. Andrews wrote. And had not God imposed His judgment upon Cain because “the voice of thy brother’s blood crieth unto me from the ground”? Belief in the use of the ordeal by touch had become a part of the fabric of the society from which these first New Englanders came; they merely brought it with them.
The Puritans also brought with them their knowledge of English justice and their experience with legal proceedings; these they adapted to their conditions in Massachusetts. Due process of law was not what it has since become, and colonial magistrates could and did rigorously examine those suspected or accused of crime; the right against self-incrimination, though a subject of contemporary debate, had not yet been established. “Speak him fair to the end that you may get him to confess,” wrote one English justice of the peace to another. If confession was good for the soul, it also facilitated the trial, during which the accused could freely be questioned, though not under oath, about the charges against him. The presumption of innocence was not yet a bulwark of the law; the presumption was more one of guilt.
A trial in the seventeenth century was still comparable to those in the thirteenth century, about which Pollock and Maitland, British legal historians, wrote: “We must … discard from our thoughts that familiar picture of a trial in which judges and jurymen listen to the evidence that is produced on both sides … and by degrees make up their minds about the truth. … We have not to speak of trial; we have to speak of proof. The old modes of proof might be reduced to two, ordeals and oaths; both were appeals to the supernatural. The history of ordeals is a long chapter in the history of mankind. … Among our own forefathers the two most fashionable methods of obtaining a iudicium Dei were that which adjured a pool of water to receive the innocent and that which regarded a burnt hand as a proof of guilt.” The ordeals by water and by fire had been used in England, but the clergy’s participation in them had been forbidden by the Lateran Council of 1215. Other forms of ordeal endured through the centuries; among these was the ordeal by touch.
Mary Martin was ordered to touch the face of the murdered child; when she did, “the blood came fresh to it.”
Superstition was a strong force in England during the sixteenth and seventeenth centuries, and James 1 gave the ordeal by touch his royal approval. Shakespeare portrays it graphically in Richard III , when Gloucester interrupts the funeral of Henry Vl and Lady Anne exclaims:
Many English cases involved the accused’s coming into accidental contact with the dead body and causing it to bleed. In 1688 the body of Sir James Stansfield of New Milnes was found in a pond. It appeared that he had been murdered, but there was no suspect until the body was moved. Then, according to the indictment against Sir James’s son Philip, “James Row, merchant, having lifted the left side of Sir James, his head and shoulder, and the said Philip, the right side, his father’s body, though carefully cleaned … so as the least blood was not on it, did (according to God’s usual mode of discovering murderers) bleed afresh upon him and defiled all his hands, which struct him with such a terror that he immediately let his father’s head and body fall with violence and fled from the body, and in consternation and confusion cried, ‘Lord, have mercy upon me!’ and bowed himself down over a seat in the church (where the corp was inspected) whiping his father’s innocent blood off his own murdering hands upon his cloaths.” Young Stansfield subsequently argued that during the postmortem examination an incision had been made in the neck, where there was a large accumulation of extravasated blood. But he was nonetheless convicted and hanged.