CHAPTER XI.

BIER-RIGHT.

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:—

“O gentlemen,see, see! dead Henry’s wounds

Open their congealed mouths and bleed afresh!”

And in the ballad of “Earl Richard”—

“Put na the wite on me, she said,

It was my may Catherine.

Then they hae cut baith fern and thorn,

To burn that maiden in.

“It wadna take upon her cheik,

Nor yet upon her chin,

Nor yet upon her yellow hair

To cleanse that deadly sin.

“The maiden touched that clay-cauld corpse,

A drap it never bled.

The ladye laid her hand on him,

And soon the ground was red.”[1141]

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]

Superstition and Force Essays on the Wager of Law, the Wager of Battle, the Ordeal, Torture · 第 11 / 23 章