April/May 1986 | Volume 37, Issue 3
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
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.”
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.
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.
Belief in the ordeal by touch was so strong that on occasion the perpetrator of a crime could be identified by proxy. In a case in England in 1611 suspicion arose about a man’s cause of death, his body was exhumed, and the neighborhood summoned to touch it, “according to custom.” “The murderer, a man of high rank whose position removed him from suspicion, stayed away, but his little daughter, attracted by curiosity, happened to approach the corpse when it commenced bleeding, and the crime was proved.” Nor was the whole body necessary; in another case a young man quarreled with a friend, stabbed him, and cast his body into a river. A half century later a fisherman brought home a human bone he had found in his nets. When the murderer examined it, supposedly the bone streamed with blood. When told where the bone had been found, the old man confessed his crime and was condemned.
It is surely significant that many, though not all, of these cases involved murders committed against one family member by another. Intense horror was doubtless often felt by those called upon to touch close relatives they had murdered. And in most cases the body was not newly dead. What, if anything, physically happened to the corpse during the ordeal is open to conjecture; what happened in the mind of the suspect may easily be imagined. The ordeal addressed itself “powerfully to the conscience and imagination of the accused, whose callous fortitude no doubt often gave way under the trial,” wrote Lea. The ordeal was revived “in one instance with this object, and the result did not disappoint the expectations of those who undertook it. In the case of People vs. Johnson, tried in New York in 1824, the suspected murderer was led from his cell to the hospital where lay the body of the victim, which he was required to touch. Dissimulation, which had before been unshaken, failed him at the awful moment; his overstrung nerves gave way, and a confession was faltered forth. The proceeding was sustained by court. …”
The New York case followed by half a century what seems to have been the last use of the ordeal in Massachusetts. In December 1768 Jonathan Ames married Ruth Perley and took her to live with him in his parents’ home. She became a mother in May, and a few days later she “died under circumstances which caused suspicion in the neighborhood,” according to the historian George Francis Dow. “When it was found that no sufficient evidence could be adduced to hold either the husband of the murdered girl, or his mother, then was demanded an exhibition of that almost forgotten ‘ordeal of touch.’ The body [having been exhumed] was laid upon a table with a sheet over it and Jonathan and his mother were invited to prove their innocence by this gruesome test. The superstition required the suspected party to touch the neck of the deceased with the index finger of the left hand. Blood would immediately follow the touch of the guilty hand, the whiteness of the sheet of course making it plainly visible. Both mother and son refused to accept the ordeal. …”
Within a week Jonathan Ames and his mother were arrested and confined in the same Salem jail in which those accused of witchcraft had been incarcerated three-quarters of a century earlier; they were soon indicted and shortly brought to trial. John Adams, the future President of the United States, then thirty-four years old, was counsel for the accused. Jonathan Ames turned King’s evidence against his mother, and the trial lasted through the night. At nine o’clock the next morning the jury returned a verdict of not guilty.
Why Mrs. Ames was saved is open to conjecture: it is not known whether the jury was informed of the defendants’ refusal to submit to the ordeal. What is significant is that the avoidance of the ordeal led, at least in part, to an indictment.
What happened in these cases? Did some actual, physical change take place in the corpses? Or did those who were required to endure the ordeal react emotionally, thereby betraying themselves? No one can be certain. Perhaps it was the interaction of a guilty conscience with a belief both in the supernatural and in the omnipresence of God, for this was His “usual mode of discovering murderers,” according to the indictment in the Stansfield case. The settlers of Massachusetts were heirs to these convictions and to the superstitions of the folk culture that had produced them, and those who were subjected to the ordeal by touch doubtless believed beforehand that it would either prove or disprove their guilt.
“The seventeenth century mind in New England, in all that concerned an understanding of nature, was still medieval,” wrote Charles Andrews. It is not surprising that these early colonists would apply an ancient test for the detection of that most heinous of all crimes. If they believed that God had fixed guilt upon the first murderer because the blood of his victim cried out to Him, He could do no less in the Massachusetts Bay Colony.