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]