The belief that at the approach of the murderer the corpse of the slain would bleed or give some other sign has, under the names of jus feretri, jus cruentationis, bahr-recht, and “bier-right,” been a resource eagerly seized by puzzled jurists. Its source is not easily traced. There is no evidence of its existence among the Eastern Aryans, nor is it alluded to in any of the primitive “Leges Barbarorum,” though Russian legends render probable that it was current among the Slavs at an early day.1136 Enthusiastic explorers into antiquity quote Aristotle for it,1137 while others find in Lucretius evidence that it was shared by cultured Romans.1138 Possibly its origin may be derived from a Jewish custom under which pardon was asked of a corpse for any offences committed against the living man, the offender laying hold of the great toe of the body as prepared for sepulture, and it is said to be not uncommon, where the injury has been grievous, for the latter to respond to the touch by a copious nasal hemorrhage.1139
The earliest allusion I have met with to this belief occurs in 1189, and shows that already it was rooted in popular credulity. It is the well-known story that when Richard Cœur de Lion hastened to the funeral of his father, Henry II., and met the procession at Fontevraud, the blood poured from the nostrils of the dead king, whose end he had hastened by his rebellion and disobedience.1140 Although it never seems to have formed part of English jurisprudence, its vitality in the popular mind is shown in Shakespeare’s Richard III., where Gloster interrupts the obsequies of Henry VI. and Lady Anne exclaims:—
And in the ballad of “Earl Richard”—
This indicates that the belief was equally prevalent in Scotland. Indeed King James VI. gave it the stamp of his royal authority,1142 and cases on record there show that it was occasionally received as judicial evidence, and even sometimes prescribed as an ordeal for detection. Thus in 1611, doubts arising as to the mode by which a person had met his death, the vicinage was summoned, as we are told according to custom, to touch the body which had been exhumed for the purpose. The murderer, whose rank relieved him of suspicion, kept away, but his little daughter, attracted by curiosity, approached the corpse, when it began to bleed and the crime was proved.1143 One of the most noted cases in which crime was detected in this manner was that of Philip Standsfield, tried in 1688 for the murder of his father, Sir James Standsfield of New Milne. In this the indictment sets forth that after the body had been found in a pond and an autopsy had been performed by a surgeon, “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, as said is, did (according to God’s usual mode of discovering murders), blood afresh upon him and defiled all his hands, which struck 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 cryed Lord have mercy upon me! and bowed himself down over a seat in the church (where the corp were inspected), wiping his father’s innocent blood off his own murdering hands upon his cloaths.” When such was the spirit of the prosecution it need not surprise us that though the defence showed that in the autopsy an incision had been made in the neck, where there was a large accumulation of extravasated blood, and though high authorities were quoted to prove that such bleeding was not evidence sufficient even to justify torture, Philip Standsfield was condemned and executed in spite of the insufficiency of circumstantial evidence.1144 A similar incident is recorded in the indictment of Christian Wilson, tried for witchcraft at Edinburgh in 1661.1145 These cases are typical, inasmuch as they illustrate the two forms, the existence of which differentiates this from other ordeals. Sometimes, as in others, suspects were brought, under judicial order, to view or touch the body. Frequently, however, the occurrence is spontaneous, and serves to excite or direct suspicion where none existed before.
The belief extended throughout all the nationalities of Europe. Although there is no reference to it in the German municipal codes of the thirteenth century, there is ample store of cases both of its spontaneous occurrence and of its judicial employment. In 1261, at Forchheim, a manifestation of this kind brought home to the Jews the lingering death of a young girl slain by them according to their hellish custom, and the guilty were promptly broken on the wheel.1146 More serious was an affair at Ueberlingen in 1331. The body of a child was found in a pond and from the character of the wounds it was recognized that Jewish fanaticism had caused the murder. The corpse was therefore carried in front of the houses of the principal Jews and when it began to bleed the evidence was deemed sufficient. The burgomaster endeavored to calm the populace, but his efforts were ascribed to Hebrew gold, and condign punishment was resolved upon. All the Jews of the town were skilfully decoyed into a large stone house and when they had been securely locked in the upper stories it was set on fire. Those that succeeded in throwing themselves from the roof were dispatched by the mob, and the rest, to the number of three hundred, were consumed by the avenging flames. Though sundry miracles ratified the justice of the act, yet the godless Emperor, Louis of Bavaria, punished the pious townsfolk by dismantling their walls and levying a heavy fine upon them.1147 The judicial employment of the ordeal is seen in a case in 1324, when Reinward, a canon of Minden, was murdered by a drunken soldier and the crime was proved by a trial of this kind.1148 More satisfactory, as showing how through the influence of imagination the ordeal sometimes resulted in substantial justice, was a case in Lucerne in 1503, when Hans Speiss of Etiswiler murdered his wife. She was duly buried, but suspicion arose, and after three weeks the body was exhumed and he was brought before it. As he approached, it flushed with color and immediately began to bleed. He had hitherto defiantly asserted his innocence, but at this sight he fell on his knees, confessed the crime, and begged for mercy. He was broken on the wheel and died most penitently.1149 Numerous cases are on record of its use throughout Germany in the seventeenth century, of which it will suffice to refer to one in which the corpse manifested a discrimination greatly impressing the authorities. It had been dead for thirty-six hours and refused to bleed on the approach of two persons suspected. Then three others were brought, one of whom, George, had planned the murder and been present, but had not taken personal part in it: for him the corpse bled at the mouth. Then came Lorenz, who had held the victim when the blow was struck: for him the mouth frothed and the wound bled. Finally Claus, who had inflicted the blow, came, and for him the blood gushed forth from the wound.1150
The extent to which popular credulity was prepared to accept this miraculous manifestation is shown in a story which obtained wide currency. An Austrian noble journeying to Vienna passed through a wood in which his dogs scratched up some bones. Their whiteness struck his fancy; he carried them to the city and sent them to a cutler to be worked up into some ornament, when as soon as they were brought into the presence of the artificer they became covered with blood. The noble reported the fact to the magistrates, the cutler was arrested and confessed that twenty years before he had slain a comrade and buried the body where the bones were found.1151 We may trace a more poetic form of this sympathy in the legend which relates the welcome given by the bones of Abelard to Heloise when, twenty years after his death, her body was consigned to his tomb.
In Denmark, though this form of trial finds no place in the codes of law, we are told that it was generally used during the seventeenth century in all appropriate cases.1152 In Holstein there was a custom known as Scheingehen, in which, when a murderer remained undiscovered, a hand was severed from the corpse with provident care and preserved as a touchstone for the future. A celebrated case is related in the books in which a dead body was found and buried, and the hand was hung up in the prison of Itzehoe. Ten years later a thief was arrested and brought there, when the hand immediately began to bleed freely, and the thief confessed the murder.1153
Italy shared fully in the belief. The most distinguished exponent of the New Learning in the fifteenth century, Marsiglio Ficino, the Platonist, does not hesitate to adduce it as a fact well known to judges, in his argument to prove the immortality of the soul against the Averrhoism fashionable in his day.1154 Equally distinguished as a jurist was Hippolito de’ Marsigli (died in 1528), who relates that in his youth he was governor of Alberga, near Genoa, when a murder occurred without affording evidence as to the perpetrator. By the advice of an old citizen he had the body brought before him and summoned all liable to suspicion to pass near it one by one. When the homicide approached, to the surprise of Marsigli, the wounds burst out afresh, but his incredulity was such that he did not consider this to warrant even an arrest until he had collected sufficient collateral evidence, when the culprit confessed without torture.1155 In Venice this ordeal was sometimes used and likewise in Piedmont, though in the latter region some magistrates regarded it as fallacious, for their experience showed that blood had not flowed in the presence of those subsequently proved to be guilty.1156 In Corsica the belief, if not still existent, has been widely diffused until within a few years.1157
France seems to have been even more addicted to this superstition. About 1580 President Bertrand d’Argentré, in his Commentaries on the Customs of Brittany, treats it as an indisputable fact and one affording good evidence.1158 In Picardy we are told it was constantly used by magistrates, it was approved by the courts in Bordeaux, and Chassanée, whose authority in Burgundy was great, argues that its occurrence justifies the torture of the accused without further evidence.1159 Spain likewise was not exempt from it. A celebrated case is cited in the books as occurring in Aragon, where the accused was brought before the corpse of the victim in the public square and appealed to God to perform a miracle if he were guilty, whereupon the body raised its right arm, pointed with its fingers to the several wounds and then to the accused; this was regarded as sufficient proof, and under sentence of the Council of Aragon the culprit was executed. Another case which occurred at Ledesma, near Salamanca, shows the existence of the belief in Castile.1160
English colonists brought the superstition across the Atlantic, where it has never been fairly eradicated from the popular mind. In January, 1680, in Accomac County, Virginia, a new-born illegitimate child of “Mary, daughter of Sarah, wife of Paul Carter” died and was buried. It was nearly six weeks before suspicion was aroused, when the coroner impanelled a jury of twelve matrons, whose verdict recorded that Sarah Carter was brought to touch the corpse without result, but when Paul Carter touched it “immediately whilst he was stroaking ye childe ye black and settled places above ye body of ye childe grew fresh and red so that blud was ready to come through ye skin of ye childe.” On the strength of this verdict an indictment was found against Paul Carter, but with what result the records do not show.1161 Nearly a century later, in 1767, the coroner’s jury of Bergen County, N. J., was summoned to view the body of one Nicholas Tuers, whose death had led to suspicion of murder. Johannes Demarest, the coroner, attests that he had no belief in bier-right and paid no attention to the experiment, when one of the jury touched the body without result. At length a slave named Harry, who had been suspected without proof, was brought forward for the trial when he heard an exclamation “He is the man,” and was told that the body had bled when touched by Harry. He then ordered the slave to place his hand on its face, when about a tablespoonful of blood flowed from each nostril, and Harry confessed the murder.1162 So recently as 1833 a man named Getter was hanged in Pennsylvania for the murder of his wife, and among the evidence which was allowed to go to the jury on the trial was that of a female witness, who swore “If my throat was to be cut I could tell, before God Almighty, that the deceased smiled when he (the murderer) touched her. I swore this before the justice, and also that she bled considerably. I was sent for to dress her and lay her out. He touched her twice. He made no hesitation about doing it. I also swore before the justice that it was observed by other people in the house.”1163 This is perhaps the latest instance in which bier-right has figured in regular judicial proceedings, but the popular belief in it is by no means eradicated. In 1860 the Philadelphia journals mention a case in which the relatives of a deceased person, suspecting foul play, vainly importuned the coroner, six 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. In 1868 at Verdiersville, Virginia, a suspected murderer was compelled to touch the body of a woman found murdered in a wood; and in 1869, at Lebanon, Illinois, the bodies of two murdered persons were exhumed and two hundred of the neighbors were marched past and made to touch them in the hope of identifying the criminals.1164
In Germany, in the seventeenth century, there was a recognized formula for the administration of the ordeal. The corpse was exposed to the open air for some hours, with breast and stomach bare to insure the thorough coagulation of the blood. The person suspected was then brought forward and required to repeat certain adjurations read to him, and then he was made to touch with two fingers the mouth, the navel, and the wounds, if there were any. If the corpse manifested any signs of sensation, if there was frothing at the mouth, or bleeding from any orifices or wounds it was considered an evidence of guilt.1165 The trial was not a mere popular experiment, but was a judicial proceeding, under the order of a magistrate.
Although bier-right, in comparison with other ordeals, plays so inconspicuous a part in the history of jurisprudence, it is especially interesting in one respect. As a judicial expedient, it did not spring into notice until after the other vulgar ordeals had been discredited and banished from the courts. It escaped the censure of the Church and was a survival of the Judgment of God, reaching its fullest development in the seventeenth century. It thus became the subject of investigation and debate in an age of critical tendencies and comparative intelligence. Among those who had faith in it there was much fruitless speculation to account for the result, and there was by no means a consensus of opinion as to the causes at work. In 1487 the inquisitor Sprenger takes a materialistic view and uses it as the basis of an argument on the wonderful properties of inanimate matter. He explains that air is introduced into the wound when it is inflicted, and that it rushes out when agitated by the presence of the slayer, bringing blood with it, but he adds that others believe it to be the cry of blood from the earth against the murderer, as related of the first homicide, Cain.1166 About a century later Del Rio tells us that some looked upon it as a miracle, others as an accident, while he himself can see no better reason than the violent antipathy conceived by the slain for the slayer.1167 Carena holds it to be the mysterious Judgment of God, unless it happens to be the work of the demon, and in this uncertainty concludes that if there are no other proofs it only justifies further investigation and not torture.1168 Oelsner informs us that learned men disputed whether it was occasioned by antipathy or sympathy, by the remains of the soul in the body, by wandering spirits of the dead, or by the spirit of enmity, and he concludes that the causes are sometimes natural and sometimes supernatural.1169 It is significant that, among so many theories framed by believers in the fact, there were so few who assented to the direct interposition of God.
Among jurists there was lively debate as to the exact weight of the evidence when the experiment was successful. Criminal lawyers were naturally loath to admit that it was decisive, for the corollary followed that if no bleeding occurred the suspect must be innocent, which was contradicted by the numerous cases in which an accused successfully passed through the ordeal and was subsequently proved to be guilty. This decisiveness was the essence of the older ordeals, and was wholly opposed to the current inquisitorial system in which certainty was aimed at by the habitual use of torture. Almost with unanimity, therefore, the legists held that it was only one of the indications pointing to guilt, and that its failure could not be alleged as a proof of innocence. They differed, however, as to the weight of the indication which it afforded. Authoritative names were cited in favor of the opinion that it sufficed by itself to justify the subjection of the accused to torture, as in a case at Marburg in 1608, where on this ground alone several suspects were tortured, when they confessed and were executed. Others took the position that it did not of itself warrant the use of torture, and that it required to be supported by other proof. Among these was the great criminal jurist Carpzov, who states that in cases submitted to him and his colleagues he had seen many in which no bleeding occurred when the murderers touched the corpse, while in others it did occur when innocents were exposed to the trial.1170 When the discussion had reached this stage the ordeal became a superfluity which was bound to disappear from the courts in spite of the persistence of popular credulity, and a school of jurists arose who denied that it deserved the name of evidence, and declared that it must be wholly disregarded. It was only a question of time when this opinion should triumph, and the first quarter of the eighteenth century probably witnessed the disappearance of this survival of mediævalism from recognized judicial procedure.1171
The oath naturally formed an integral portion of the ordeal. Even as in the battle trial both parties, on entering the lists, were compelled to swear to the truth of their assertions, so in the other ordeals the accuser and accused took an oath immediately prior to the administration of the test.1172 Sometimes, however, the oath of the accused was regarded as a sufficient ordeal in itself. We have seen above how, among many and diverse races, disculpatory oaths are administered with ceremonies which render them practically ordeals in view of the popular belief that misfortune will follow perjury. The anthropomorphic mythology of Hellas presents this idea in its most concrete form by the most solemn oath of the gods, taken on the water of Styx brought in a vase for the purpose, perjury on which was followed by a year of stupor and nine years of segregation from all fellowship with the brother immortals.1173 We have also seen (pp. 29 sqq.) that in Christendom the Church set little store by simple oaths, but reckoned their obligation by the holiness of the material objects on which they were taken; and when these were relics of peculiar sanctity they were held to have the power of punishing the perjurer, thus rendering the oath administered upon them an absolute ordeal. This belief developed itself at an early period in the history of the Church. St. Augustin relates that at Milan a thief, who swore upon some holy relics with the intention of bearing false witness, was forced irresistibly to confess himself guilty of the offence which he designed to fasten upon another; and Augustin himself, when unable to decide between two of his ecclesiastics who accused each other of revolting crime, sent them both to the shrine of St. Felix of Nola, in the full expectation that the judgment of God would bring to light the truth as between them.1174 Gregory the Great shows the same belief when he alludes to a simple purgatorial oath taken by a bishop on the relics of St. Peter in terms which expressly convey the idea that the accused, if guilty, had exposed himself to no little danger, and that his performance of the ceremony unharmed had sufficiently proved his innocence. Gregory, moreover, in one of his Homilies, assumes that perjury committed on the relics of the saints is punished by demoniacal possession.1175
This was not a belief likely to be allowed to die out for lack of nourishment. When, in the tenth century, Adaulfus, Bishop of Compostella, was accused of a nameless crime, and was sentenced by the hasty judgment of the king to be gored to death by a wild bull, he had taken the precaution, before appearing at the trial, to devoutly celebrate mass in his full pontificals. The bull, maddened with dogs and trumpets, rushed furiously at the holy man; then, suddenly pausing, advanced gently towards him and placed its horns in his hands, nor could any efforts of the assistants provoke it to attack him. The king and his courtiers, awed by this divine interposition in favor of innocence, threw themselves at the feet of the saint, who pardoned them and retired to the wildest region of the Asturias, where he passed the rest of his days as an anchorite. He left his chasuble behind him, however, and this garment thenceforth possessed the miraculous power that, when worn by any one taking an oath, it could not be removed if he committed perjury.1176
In other cases the shrines of saints convicted the perjurer by throwing him down in an epileptic fit, or by fixing him rigid and motionless at the moment of his invoking them to witness his false oath.1177 The monks of Abingdon boasted a black cross made from the nails of the crucifixion, said to have been given them by the Emperor Constantine, a false oath on which was sure to cost the malefactor his life; and the worthy chronicler assures us that the instances in which its miraculous power had been triumphantly exhibited were too numerous to be specified.1178 At the priory of Die, dependent on the great Benedictine abbey of Fleury, there was preserved an arm-bone of St. Maur, which was possessed of somewhat similar properties. On one occasion a steward of the priory named Joscelin was accused of embezzlement, and offered to rebut the evidence against him by an oath taken on the arm of St. Maur. Rejoiced at passing through the test triumphantly, he removed his hand from the relic, and stroking his long beard with it he exclaimed, “By this beard, the oath I swore was true!” when suddenly the beard came off in his hand, and his chin, thenceforth hairless, was the evidence alike of his guilt and his perjury, so that he and his descendants were at once proclaimed ineligible to the stewardship.1179 Less serious in its consequences was a false oath taken by a peasant on the altar of St. Martial of Limoges. The offender was deprived of speech, and could only bellow like an ox until he had prayed over the tomb of the saint, and his throat had received the sign of the cross from a priest.1180 Even at the present day the jaw-bone of St. Patrick is preserved near Belfast, and is used extra-judicially as an ordeal, in the full conviction that the slightest variation from the truth will bring instantaneous punishment on the perjurer,1181 and in Sardinia a similar oath on relics is believed when false to flay the hand of the accused.1182 In the Middle Ages these dangerous relics were common, and however we may smile at the simplicity of the faith reposed in them, we may rest assured that on many occasions they were the means of eliciting confessions which could have been obtained by no devices of legal subtlety according to modern procedures.
Nor did it always require death to confer the sanctity requisite to perform these miracles, as was attested during the life of St. Bertrand of Comminges. A woman accused of adultery went to the saint and laying her hand on him swore to her innocence, when the hand immediately withered and remained a permanent witness of her guilt and her perjury.1183
Even without any special sanctity in the administration of the oath, Heaven sometimes interposed to protect the rights of the Church. About the year 1200 Cæsarius of Königswinter, a knight, who had borrowed twenty marcs of his brother, Hirminold Dean of the Chapter of Bonn, denied the loan after his brother’s death. As the money belonged to the Church, the chapter summoned the knight, and having no proof, were obliged to content themselves with his oath. Having accomplished his perjury, Cæsarius mounted his horse and returned homewards, but when he had accomplished the half of his journey his horse was suddenly fixed immovable to the earth, and he found himself deprived of the use of the tongue which he had thus abused. Recognizing the source of the trouble, he prayed to Abraham, promising to retrace his steps and confess his sin. He was immediately released, returned to Bonn, made restitution, and accepted penance. He subsequently entered the monastery of Heisterbach as a novice, and related the story of himself.1184