The Dead Baby in a Blue Blanket: Ordeal of Touch
The Ordeal of Touch in Colonial Virginiaby Kathy Warnes
". . .the black & sotted places about the body of the childe grew fresh & red. . ."In many ways, the story of Paul and Sarah Carter, and Sarah's daughter, Mary Andrews, is like a seventeenth century Gothic tale. It contains medieval superstition, sexual abuse and murder. The image of Paul and Sarah Carter burying Mary's dead baby son is starkly horrifying, as is the pragmatism of Sarah digging up the baby's body after the murder had been discovered so that the jury could view it and her memory of the blue blanket that she had wrapped around the dead child. The fact that Sarah Carter made certain that the dead baby had childbed linen pulls at the heartstrings, yet there is an element of calculation in her actions. Gruesome as it is, the Carter story contributes to the understanding of the legal and social effects of infanticide in seventeenth century Virginia, and reveals the role of women in the process. It is also the last known case in the colony where the Ordeal of Touch or the Bier Test was used as a barometer of innocence or guilt.1 The Ordeal of Touch originated from the belief that a sympathetic action of the blood caused it to flow at the touch or nearness of the murderer, a belief that was common in England, Germany, France, Spain, Italy, Scotland and the rest of the Medieval world. Probably the best known example from German history occurred when the murdered Seigfried was laid on his bier and Hagan called to prove his innocence. Hagan approached the corpse, and as soon as he did, the dead chief's wound bled afresh.2 A Scottish version of the Bier Test took place in Edinburgh in 1688, at the trial of Philip Standsfield for the murder of his father, Sir Philip Standsfield. Sir George Mackenzie, the King's advocate, conducted the prosecution. In his speech at the Standsfield trial, Mackenzie described the ordeal of the prisoner:
God Almighty himself was pleased to bear share in the testimonies which we produce. The Divine Power which makes the blood circulate during life has oftentimes in all nations, opened a passage to it after death upon such occasions, but most in this case; for after all the wounds had been sewed up and the body designedly shaken up and down and which is most wonderful, after the body had been buried for several days, which naturally occasions the blood to congeal. Upon Philip's touch it the blood spurted and sprung out, to the great astonishment of the chirurgeons themselves who were desired to watch the event; whereupon Philip, astonished more than they, threw down the body crying, O God! O God! And cleansing his hand, grew so faint that they were forced to give him a cordial.3Colonists in Massachusetts Bay Colony also practiced the Bier Test. In 1646, Mary Martin lived there with her sister after their father had departed for England, entrusting them to the guardianship of a Mr. Mitton. Massachusetts Bay Governor John Winthrop said that Mr. Mitton was "taken with her, and soliciting her chastity, obtained his desire, and having diverse 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."4 Mary delivered her baby alone in the back room of Mrs. Bourne's home on the evening of December 13, 1646. After she had recovered somewhat from her labor, Mary killed her baby daughter and concealed the body in a chest. Soon, the child's body was discovered and Mary and her daughter's corpse were brought before a jury which ordered her to endure the Ordeal of Touch. When Mary touched the face of her dead child, "the blood came fresh to it." After confessing to murdering her daughter, Mary was tried, convicted and hanged on March 18, 1647.5 A similar case, also with a mother named Mary, occurred thirty-two years later in Virginia, but with a significant difference. The mother of the bastard child in this case was not required to undergo The Ordeal of Touch. On March 1, 1679, Paul and Sarah Carter and Sarah's daughter, Mary Andrews, were brought before a coroner's jury in the Accomack County Court to be questioned concerning a child born of Mary.6
Twelve subscribers were sworn to view the body of the dead child, which had been removed from a shallow grave in the garden near the Carter house. The twelve subscribers, all women, were sworn and brought to view the body of the dead child. The twelve women required Sarah Carter, not Mary Andrews, the mother, to stroke the child. Sarah stroked the body of her grandson as the twelve subscribers watched. Mary Watts, Elizabeth Cutler, Jane Taylor, Mary Hill, Margret Jenkins, Matilda West, Mary Mikell, Mary Anderson, Amey Parker, Mary Sipple, Elener Calvert, and Ann Fenn reported that "we saw no alteration in the body of ye childe."7 The subscribers called Paul Carter next. He stepped forward and stroked the body of the child. The subscribers reported that "immediately whilst he was stroking ye childe the black & sotted places about the body of the childe grew fresh and red so that blud was redy to come through ye skin of the child."8 Now that Paul Carter's guilt was established, at least in the minds of the twelve women subscribers, the coroner's jury took over. Patterned after the English courts, the county and General Courts in the Colonies followed a set procedure in criminal cases. Once a felony was committed, and murdering a bastard child was a felony, it was the immediate duty of every person either witnessing or discovering the crime, to inform the nearest justice of the peace of constable. If the crime involved a death, the coroner was also notified. Then the coroner issued a warrant to the constable empowering him to summon twenty-four freeholders to the spot where the body lay. Twelve jurors were chosen from the twenty-four freeholders and the coroner appointed a foreman from them.9 Next, the jurors were sworn and the coroner delivered his charge to the jury and outlined their responsibilities. First, the jury had to determine how the deceased had died because if the deceased had been murdered the jury had to try to name the killer and take steps to apprehend him or her. In a case of suspected murder, the coroner's jury had to literally view the body which most of the time turned out to be an unpleasant and heart-rending task. Once they had viewed the body, the jurors were usually allowed to retire to a more convenient spot for their deliberations. Witnesses were summoned and examined, and their testimony taken in writing and confirmed by their signatures.10 If the country justices considered the testimony vital in their examination of the accused, the witness was bound over by a Recognizance. This meant that the accused had to post bond for his or her appearance at the examination. After all the testimony had been heard, the jury agreed upon a verdict to be delivered to the coroner by the foreman.11 The final detail in the cause procedure involved writing a summary of the examination with the coroner and every member of his jury signing the document. When this final duty was finished, the jury could be dismissed, the body buried or reburied, and the records of the investigation turned over to the county court. Later, the coroner collected his fee, which usually averaged about 133 pounds of tobacco from the estate or from the relatives of the deceased.12
In most trials, freeholders from the county where the court was held served on the coroner's jury. The jury in the Carter case was composed of John Stretton, Henry Reed, William Marshall, Richard Hinman, John Bagwell, Barth. Meers, Isaac Metcalfe, Rob. Watson of Occahannock, John Betts, Thomas Bagwell and Arthur Robins. Robert Hutchinson served as the jury foreman. After these jurors were selected and worn, Justices Charles Scarburgh, Richard Hill and John West readied themselves to unravel the story of Mary's bastard child. Coroner William Custis listened attentively as well.13 Ironically, Coroner William Custis had been one of the strokers instead of questioners in another Ordeal of Touch Case. The Northampton County Court record revealed that on December 14, 1656, Captain William Whittington issued a warrant for a Jury of Inquest over the body of Paul Rynners. The Jury reported:
Have viewed the body of Paul Rynnose late of this County dec 4 & have caused Mr. Wm. Custis (the person Questioned) to touch the face and stroke the body of the Said Paul Rynurs (which he very willingly did) but no Sign did appear unto us of question in the law.14Twenty years later, Custis and the others asked Carter what he knew about his stepdaughter's bastard child. Carter answered that he knew that Mary had given birth to a son and that her mother, Sarah, had assisted at the child's birth. He stated that he did not know whether or not the child had been born alive, but that he had seen Sarah and Mary try to preserve its life. He testified that the child had rested between the two women all night and that it was dead the next morning. According to Carter, his wife carefully washed and dressed the child, and then he helped her bury it. The justices asked Paul if he knew who had fathered the child, and he replied that Mary had named a Mr. James Tuck.15 The justices carefully began their important task of identifying the father of the bastard child. Under the stipulations of the English Poor Law of 1576, the mother of a bastard infant had to name the father, and the father was required to give bond or weekly payment to the parish. If the father did not comply, his non-compliance could result in corporal punishment and jail terms. The Poor Law also required justices of the peace to examine women accused of bastardy. Great moral and legal pressure was exerted on these women to reveal the name of the child's father so the parish could force him to support the destitute infant. Midwives were charged to ask a mother in labor for this information and depositions of examinations were filed with court records.16 The same Poor Law that vigorously prosecuted parents encouraged the poor to conceal a bastardy pregnancy and even to murder a bastard newborn. The daughter's mother was the most frequent helper in infanticide cases. Fathers were included in the indictments as accessories and conspirators in the concealment of births, but women bore the brunt of the prosecution. Fathers and lovers were rarely convicted, even on the occasions when a grand jury brought a true bill against them.17
In court, the defendant's character and the circumstantial proof of concealed pregnancy were almost as important as the evidence or premeditation introduced against the woman. The trial usually lasted about two hours, and the defendant herself could not testify under oath. The jury could draw its own conclusions, finding ways to soften the law of homicide if it chose. Under these conditions of harsh law, hurried judges and independent-minded juries, circumstantial evidence became extremely important.18 So far, the evidence of fatherhood in the Carter case was circumstantial, but the Court made it a point to emphasize that Carter was Mary's stepfather, a detail that would figure significantly in the verdict. When the justices for Accomack County examined Paul Carter, he said that he had helped his wife bury the dead child in the old house. A month later, he helped his wife Sarah remove the child from the house after a warrant had been served for the search of his stepdaughter because she had been accused of bearing a bastard child. Together, Paul and Sarah reburied the child's body in the garden.19 When the justices asked him about the child's parentage and the circumstances of his birth, Paul said he had not called for help when his step daughter went into labor because he did not realize that she was pregnant. He testified that he had denied the fact of his step daughter's pregnancy before Major Scarburgh and Colonel West to conceal her shame. He also denied that he had fathered her child.20 Matilda West and Mary Mikell each swore to depositions that contradicted Paul Carter's testimony. Matilda West, 35 years old, said that she had been at the house of Paul Carter on the first day of March and received the body of the child. Madam West said that when Paul Carter touched the body of the dead child, Mary Andrews clapped him on the back and cried, "Fie, Paul, fie, this is your child!" Paul answered, "I doe not gain say it." Madam West further testified that when she was leaving the house she said to Paul Carter, "Were not ye a wicked man to lay with ye wife's child!" According to Madam West, Carter answered, "I was a wicked man for so dowing, and I must goe to God and not to man for forgiveness."21 Fifty-year-old Mary Mikell, swore to the second, almost identical deposition. She, too, had been at the Carter house on March 1 and received the body of the child. She also said that when Paul touched the body of the dead child, Mary Andrews clapped him on the back, saying, "Fie, Paul, fie, this is your child!" Mary Mikell testified that Paul answered, "I doe not gainsay it but it is."22
The justices questioned Paul's wife, Sarah next. Sarah Carter testified that months earlier she had been in bed with Mary, her daughter, and had noticed that Mary was with child. There had been no midwife present at the birth of her grandson. According to Sarah, she and Paul assisted at the birth of the child and she had cut her blue apron, put the child in the apron and a blanket, and laid it on a couch. Answering a question about childbed linen, Sarah said that she had provided one suit, which the child wore when he was buried.23 Sarah's testimony about childbed linen illustrates the childbirth customs of seventeenth century Virginia and the position of women in society. Childbirth was a female arena. The midwife, neighbors and kin, stayed with a woman through her labor, while the husband hovered on the outskirts of all of the activity. Women who bore children outside the bonds of marriage could be brought before the courts by neighbors, frequently female neighbors. The presence of women as both the accusers and the accused in bastardy cases indicated the extent of women's informal role as guardians of community morality, but this role also underscored their lack of any formal power in both church and state courts. Women could be witnesses, but never judges, lawyers or prosecutors, and they bore the brunt of the punishment for bastard children.24 Sarah Carter testified that her grandson remained buried in the old house from the 13th of January until the end of February. Then she removed him from the first grave and reburied him in the garden because she thought "it would be more convenient for the people coming to view the body."25 There is nothing in the court record to indicate who may have suspected that Mary had given birth to a bastard child or who had gone to the authorities for a warrant to search her. The probability is that a woman had somehow discovered Mary's secret and told the authorities. There is also nothing in the court record to indicate Sarah's reaction when her guilty secret was discovered, but it is not difficult to imagine her pain and confusion about the situation.
A particularly poignant part of Sarah's testimony centered on the questions the justices asked about the relationship between her husband and her daughter. They asked Sarah if she had ever seen unusual familiarity between her husband and her daughter. Sarah replied that one time as she was catching her mare to go to the mill, she came to the old house. There, she saw her husband hug and kiss her daughter and take her daughter's clothes up to her knees. Sarah said that she rebuked Paul for these actions and charged him with debauching her daughter. Paul insisted that he had done Mary no harm and walked away.26 There is another tragic dimension to the Carter story. Paul and Sarah Carter first appeared in the court records of Northampton County in October 1672. In a case titled "Letherbury vs. Carter," the record stated that Sarah, the wife of Paul Carter, bore a child in Northampton County. Afterwards, the child was bought by Mr. Thomas Letherbury who secured an order from Northampton County that Carter would pay twelve hundred pounds of tobacco to him and he would keep the child. Carter's wife, Sarah, appealed to the General Court which decreed that the order of the Northampton Court was void and the child was freed.27 If Mary was the same child that Paul had sold or bound out and Sarah persuaded the General Court to return to her, this incident raises some interesting questions. Who was Mary's father? What kind of home had she returned to? Why had Paul agreed to sell Mary to Thomas Letherbury in the first place? Possibly Mary herself was a bastard child and Paul did not want to take responsibility for her upkeep. Children were one of the primary focuses of the poor laws in Virginia. Parish children who might have been orphaned, illegitimate, abandoned, or taken away from undeserving parents were cared for and in most cases, apprenticed at parish expense. Parish care was not always as tender as it could be, but it was care and helpless children were not ignored. Most of these children, especially boys, were bound out as apprentices to neighboring planters. The parish officials supervised the apprenticeship to the extent of requiring the planters who received parish children to give them the rudiments of an education and a payment of clothing and grain when they came of age.28
The evidence of vestry books gives the impression that parish children were an economic asset to the planters. In addition to a substantial apprenticing fee, a planter would receive the labor of a growing child for an extended period of time. In return, the planter had only to promise to keep the child "off the parish," for the period of his apprenticeship. The parishes seemed to have had little difficulty placing children. In some cases, more than one person offered to accept a parish child, and in a few others it appeared that planters bid competitively for an apprentice.29 In the case of Thomas Letherbury, there did not seem to be any questions about his wealth. The Northampton County Court Records show that on February 25, 1660, Thomas Letherbury was granted 600 acres of land for bringing twelve people into Virginia under the headright system, which allotted a certain amount of land to a person bringing new people into the colony. The people brought in under the headright system were bound by some form of contract to serve long enough to pay their passage and earn a profit for the other people involved in the transaction, including the recruiting agent, merchants, ship owner and planter.30 Another indication that Thomas Letherbury was prosperous enough to buy apprentices and bequeath land to his sons appeared in the written record. The Virginia Quit Rent Rolls for 1704 revealed that Charles Letherbury paid tax on his 1,100 acres of land and that Perry Letherbury paid tax for 1,750 acres.31 The General Court records in Virginia for 1671 illustrated how seriously the financial consequences of bastardy and infanticide were taken in the Colony. On the 5th of April, 1671, the Court heard the case of John Page. Mr. Page had purchased a woman servant who had become pregnant in England and delivered the child while she was in Page's service. The court ordered that the parish of Middletowne "keepe and provide for the child." In return, the child had to serve the parish for twenty-four years.32
Another 1671 case involved Andrew Reader and Clement Haydon, Churchwardens of Martyn's Hundred Parish, plaintiffs, and Mr. Richard Whittaker, defendant, concerning bastardy. The Court ordered that Whittaker, defendant, keep the child and pay what the parish had already disbursed for keeping the child, including the costs of the court case.33 Was Mary one of these bastard children whose mother, Sarah, could not bear to give her up? How did Mary feel about the situation? Becoming pregnant by her stepfather and knowing that her mother and stepfather had murdered and buried her son must have been devastating to her. Directly contradicting her mother, Mary testified that her son had been born alive and that she had heard him give one shriek and no more at his birth. When her mother laid her son at Mary's breast, he was according to Mary, "a little alive." She said that her stepfather was present and assisted at her labor and went out of the house after the baby was born. The next day, her mother and stepfather told her that they had buried the baby in the old house.34 The justices asked Mary who she believed was the father of her bastard child. The court record stated that she answered that "she does verily believe that her father-in-law Paul Carter is the father, he having frequently to doe with her, and that onece in ye old house her mother found him with her in his armes with his hands under her coates, and thinks that her mother comeing hindered them of any further action. . . "35 The justices asked Mary a final question. "What child bed linnen did your mother provide?" This was an important question because many juries reasoned that if a woman and her relatives provided child bed linen for the baby this indicated that they had no plans to kill it. Mary answered that her mother had provided one suit of child bed linnen and that her father-in-law had "a piece of scotch cloth to make into child bed linnen."36 The Accomack County Court "according to the Laws of England and in pursuance of the 24th Act of Assembly," ordered the Inquest and further trial of Paul Carter. It also ordered that Sarah, Paul, and Mary be kept in custody until the trial, which was to be held before the Honorable Governor and Council of Virginia.
The results of the trial were enlightening for male-dominated Colonial Virginia. At a General Court held at James City on the 27th of April, 1680, the Court "vehemently suspected" that "Paul Carter hath contrary to all good manners and behavior accompanyed with Mary ye naturall daughter of Sarah ye wife of him ye s'd Paul." The Court ordered Mary removed from the home of Paul and Sarah and placed in some "convenient: part of the county where she and Paul could not cohabitate. The justices were instructed to compel Paul to put up security for carrying out the order and for his future good behavior.37 For the second time in her life, the Court removed Mary from her home. Paul Carter was no longer in a position to hurt her, but there are many lingering questions about the story. How did Sarah Carter feel about Paul after the court had found him guilty of the murder of her grandson? How could she live with him knowing that he had impregnated her daughter and became of him, her daughter was lost to her again? These questions are as timely and pertinent in twenty-first century courts as they were in those of the seventeenth century. Mary Andrews is also an enigma. The court record provides a solid factual basis to piece together some parts of her story, but there are many questions that will always remain unanswered. What finally became of Mary? Was she reunited with her mother? Did she ever marry? Or was Mary Andrews forever haunted by the stark words:
"the black & sotted places about the body of the childe grew fresh and red"