Murder of Ambrose Madison, Grandfather of President James Madison

President James Madison was the grandson of Ambrose Madison

President James Madison, by John Vanderlyn (1775–1852) [Public domain], via Wikimedia Commons

A slow, lingering death in 1732 made its mark not only in Virginia criminal history, but presidential history as well. The first documented murder in the Orange County, Virginia region was of the grandfather of a U.S. president. But it may not have been a murder at all. The strange death of Ambrose Madison presents a mystery that you might be able to help solve today.

Strange death of Ambrose Madison

Ambrose Madison, the paternal grandfather of President James Madison, was an early landholder in present-day Orange County. He owned several slaves, and they took the blame when Madison began feeling ill around June or July of 1732. He made out his will on July 31, and on August 27, succumbed to his illness. No records of his birth date still exist, but he was at least 36 years old when he died. James Madison Sr., the president’s father, was just nine years old when his father passed.

The poisoning charge

Shortly before Ambrose Madison’s death, two of his slaves, Turk and Dido, along with a neighbor’s slave, Pompey, were cited for “Suspition of Poysoning.” Because the court records have been lost, we don’t know any details about Madison’s symptoms, the type of poison, or evidence for the slaves’ involvement. If the slaves did indeed poison Ambrose Madison, they didn’t use enough or a type to kill him outright. The substance must have been sufficient to damage his organs enough to lead to his slow demise over a period of a couple of months.

The Virginia court tried and convicted Turk, Dido, and Pompey on September 6. Pompey was executed by hanging the next day; Turk and Dido received a whipping. The court deemed their involvement was insufficient to warrant the death penalty.

Was it murder or not?

Ann L. Miller, an Orange County historian, put this case under a magnifying glass in her book, The Short Life and Strange Death of Ambrose Madison. She examined subsequent cases in which slaves allegedly poisoned their masters.

The other poisoning cases

In the fifteen years following Ambrose Madison’s death, Miller found three other cases in Orange County. On August 19, 1746, a slave named Eve allegedly poisoned the milk of her master, Peter Montague.  He died in December. Eve was convicted and executed.

On August 1, 1748, a slave named Letty allegedly poisoned the “Water, Bread & Meat” of Richard Sims, who died in January after five months’ illness. She was also accused of poisoning fellow slave, Simon, owned by John Grymes, on September 31, 1748, by serving him toxic “Cyder, Water, Bread & Meat.” He died the following April. Letty pleaded not guilty and was acquitted.

The golden thread

Miller points out that all four poisoning cases have similar features: The plantations of the poison victims were all located within eleven miles of each other. All the victims suffered lingering deaths over the period of several months. And the dates of the poisonings were all in summer or early autumn.

Might that point to a botanical cause and natural deaths? Miller raises the question and asks what type of toxic plants grow (or are most potent) in Northern Virginia during those months.

Might white snakeroot have caused the death of Ambrose Madison?

White snakeroot. Sten Porse, Ageratina altissima (2006), Creative Commons.

Milk sickness

The poisonings remind me of the “milk sickness” that killed Abraham Lincoln’s mother, Nancy Hanks Lincoln, in Indiana. White snakeroot plants (Ageratina altissima) containing the poison tremetol killed both the cows that consumed them and the people who drank their milk. White snakeroot does grow in Virginia. But milk sickness victims usually die within a couple of weeks, not months.

Might Virginia have another toxic plant that could have caused these deaths? How common is white snakeroot in Orange County? If you have any knowledge of botany or Virginia flora, I’d love to hear your theories.

Literature on point:

Ann L. Miller, The Short Life and Strange Death of Ambrose Madison (Orange, Virginia: Orange County Historical Society, 1995)

Douglas B. Chambers,  Murder at Montpelier: Igbo Africans in Virginia  (Jackson: University Press of Mississippi: 2005)

Virginia Botanical Association, “Ageratina altissima,” Digital Atlas of Virginia Flora

Michael Burlingame, Abraham Lincoln: A Life, vol. 1 (Baltimore, Johns Hopkins University Press, 2008)

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Coldest Murder Cases Ever Solved

cold cases

Image by Castleski, courtesy of Shutterstock.

What have been the coldest cases ever solved?

A craveonline article by K. Thor Jensen, “The Longest Cold Cases in History that were Eventually Solved” lists several. At the top of the list stands the 1957 murder of Maria Ridulph in Sycamore, Illinois. She disappeared on a winter day and her corpse was found a year later. Investigators exhumed her body in 2011 for DNA testing, and amazingly they found DNA that matched to a former suspect. He was arrested and charged in 2012, 55 years after the murder.

In second place for the coldest cases ever solved comes the double murder of two policemen in 1957. They pulled over a car for running a red light in El Segundo, California. The driver shot them both. Advances in fingerprinting technology enabled law enforcement to identify a suspect in 2002, who pled guilty. Forty-five years had passed between the murders and conviction.

A record-breaking cold case from Germany

The case that’s the subject of my book would come in third place on the craveonline list: 37 years between the murder and solution. And it just might hold the record for the 19th century for the coldest cases, back when murders were even harder to solve. It also became 19th-century Germany’s only murder case solved in the United States outside of a confession.

An unknown assassin gunned down the mayor of Bönnigheim, Germany, in 1835, but without any solid leads, the investigation went cold in 1837. A tip from Washington, DC solved the case in 1872. An immigrant from Bönnigheim wrote it. The German prosecutor was able to close the investigation after a forester found corroborating evidence in the archives.

The American letter

The letter that cracked one of the coldest cases ever solved

Frederick Rupp to the City of Bönnigheim, April 29, 1872. Landesarchiv Baden-Württemberg, Staatsarchiv Ludwigsburg, E319 Bü 146, with permission

Here you get a preview — the first page of the letter and a translation. It’s written in an old German handwriting called Kurrentschrift, so even if you know German, you might find it hard to read. Don’t worry — there are no spoilers here, because the author first named the assassin on the second page. If you want to know how the letter continues, you’ll need to purchase the book.

Washington, D.C. 29 April 1872

To the highly honored, praiseworthy Mayor
And city council in Bönnigheim, District Authority of Besigheim
Kingdom of Württemberg!

Most Honorable Gentlemen!

I consider it my duty to inform you that after many years and some discrete research, I have finally learned who the heinous murderer of our highly esteemed but unfortunate Mayor Rieber was. [Rieber] was, as far as I remember, shot by a heinous murderer in the autumn of 1834 [corrected to 1835], in the night at 9:45 pm, as he came home from his brother’s inn, the Waldhorn, where he had eaten – he lived next to the palace – while he was opening his door. They offered a huge reward for arresting the murderer, but the entire investigation was fruitless, and as far as I can still remember, several upright citizens, who were innocent, as it now appears, came under suspicion. In order to remove that suspicion from those miserable families, I see it as my sacred duty to report everything to you exactly as I discovered it recently by coincidence.

Death of an Assassin: The True Story of the German Murderer Who Died Defending Robert E. Lee

My book tells the story of amazing German-American case and its connection to Robert E. Lee. It’s publication date is today – September 1, 2017, and it has received some great reviews. Take a look at it here on Amazon.

Praise for Death of an Assassin

Death of an Assassin book cover

Death of an Assassin book cover, courtesy of Kent State University Press.

“Death of Assassin is an entertaining look at very human characters in a world on the edge of radical change.” — Robert Davis, New York Journal of Books

“An engaging piece of history.” — Tim Gebhart

“Death of an Assassin is not only a startling historical discovery but a poignant tale of heroism and redemption. With a marvelous eye for detail, Ann Marie Ackermann has navigated through long-forgotten records on both sides of the Atlantic to unearth a new and complex kind of hero — a brutish, vengeful man who, perhaps out of remorse, was anxious to start a new life and redeem himself in his adopted home. It’s a great story, bolstered by solid research and told by one who is uniquely qualified to bring it to the public.” — Michael W. Kauffman, author of American Brutus: John Wilkes Booth and the Lincoln Conspiracies

“Ann Marie Ackermann has marvelously weaved a story of diverse themes into a single fabric of historical research and investigation. Written in a conversational style and drawing the reader into the web of mystery produces a story of high interest and adventure.” — Anthony Waskie, assistant professor, Temple University, author of Philadelphia and the Civil War

“An Edgar-worthy true crime masterpiece of astonishing investigative skill and irresistible narrative flow. I know the term “must read” is overused, but I’m going to use it again — Ann Marie Ackermann’s new book is a must read!” — Burl Barer, NYT-best-selling author of Murder in the Family and Man Overboard

“A page-turner of historical scholarship, Death of an Assassin takes a little known German cold case murder from 1835 and turns it into an intriguing mystery. Using a style reminiscent of Case Closed, author Ann Marie Ackermann puts you in Bonnigheim when the assassin pulls the trigger and later Mexico, where the fleeing assassin engulfs Robert E. Lee in tragedy, long before Lee ever heard the canon near Appomattox Court House.” — Fred Rosen, author of Murdering the President: Alexander Graham Bell and the Race to Save James Garfield

“In her excellent work, Death of an Assassin, Ann Marie Ackermann has penned a fascinating account of a long-ago murder; a murder that should have remained tucked away somewhere in the dark archived files of history, never again to see the light of day. Thankfully for us, however, the author has not only rescued this strange tale from obscurity, but has brought to light a story that begins with the murder in Germany, and ends up in the pre-Civil War America of Robert E. Lee, where the killer begins an eventful new life.

“With a sharp eye for detail, Ackermann painstakingly reconstructs the lives of the participants from long-hidden facts, and then, having breathed life back into them, paints a vivid literary picture throughout the pages of her riveting book. It’s a tale that will pull you in from the very first page.” — Kevin M. Sullivan, author of The Bundy Murders: A Comprehensive History and Custer’s Road to Disaster: The Path to Little Bighorn

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Robert E. Lee’s mystery letter connected to a record-breaking cold case

 

Robert E. Lee's mysterious letter

Detail of Robert E. Lee’s letter. Robert E. Lee to George Washington Custis Lee, 11 Apr. 1847, deButts-Ely family papers. (c) Virginia Historical Society, with permission.

 

A national mystery

The Virginia Historical Society inherited a national mystery in 1981. That’s when it obtained the deButts-Ely family papers. The collection contains Robert E. Lee correspondence, and among it, a surprising letter from the Siege of Veracruz. In that letter, Robert E. Lee praised an unknown hero. But no one suspected that man was an assassin – the perpetrator in a record-breaking German cold case.

Lee at the Siege of Veracruz

General Winfield Scott masterminded the siege in March 1847 as the opening gambit to his campaign in the Mexican-American War. While General Zachary Taylor remained in northern Mexico, far from the capital, Scott planned an amphibious landing near Veracruz. He wanted to capture the Mexican port city and then march inland, following Cortez’s route from centuries before, to sack Mexico City.

The Siege of Veracruz was Robert E. Lee’s first battle. He directed the fire at an onshore naval battery. A German company from Pennsylvania’s first regiment was assigned to defending it. Eight Americans died at the battery before the U.S. won the siege, and one of those deaths made a profound impression on Lee. On April 11, he put his feelings on paper in a letter to his son Custis:

Robert E. Lee’s mystery letter

There was one poor fellow that behaved nobly. His thigh was broke by a cannon ball & he was laid in a trench at the rear of the battery for security, the balls & shells were flying so thick that he could not be borne away. A bush was stuck over him to keep the sun out of his eyes & all that we could give him was occasionally a cup of bad warm water. The men at the guns were hot & thirsty & drank up the water as fast as it could be brought. It was at some distance & the balls swept over the field & at such a furious rate that the officers would not let the men go for water except when they could not do without it. There the poor fellow lay till evening; when they got a litter & was bearing him off, when a shell fell & burst & a fragment killed him. He laid the whole day with the balls & bombs flying over him without uttering a complaint. His sufferings must have been very great, for the battery kept up a constant & brisk firing & the concussion from the 32 [pounders] & Paixhan guns shook the whole ground & must have pained him terribly. I doubt whether all Mexico is worth to us the life of that man.*

This unknown hero has been a discussion point in the literature. Why would Robert E. Lee balance American military objectives against the life of one man and find them lacking?

But no one, until now, has asked who that man was.

Naval battery at the Siege of Veracruz

Naval battery at the Siege of Veracruz, ca. 1848. Library of Congress Prints & Photographs Division, public domain.

The unknown hero turns out to be a long-sought criminal

A careful comparison of the American casualty list against descriptions of the deaths at the naval battery in primary sources such as logbooks, letters, and a newspaper account from an embedded journalist all point to a German volunteer in the 1st Pennsylvania.

Robert E. Lee couldn’t have known the man’s background. It would have shocked him. The man was the assassin in a record-breaking German cold case – 19th-century Germany’s coldest case ever solved and its only murder ever solved in the USA.

For the first time, Death of an Assassin: The True Story of the German Murderer Who Died Defending Robert E. Lee (Kent State University Press, September 1, 2017) brings these two stories together. It offers American history packaged in international true crime wrapping. You can order the book here on Amazon.

Next week we’ll look at the German case and the letter from America that provided the crucial clue.

Literature on point:

*Robert E. Lee to George Washington Custis Lee, 11 Apr. 1847, deButts-Ely family papers, Virginia Historical Society.

Elizabeth Brown Pryor, Reading the Man: A Portrait of Robert E. Lee Through His Private Letters (New York: Penguin Books, 2009; discusses the letter on p. 173).

Bernice-Marie Yates, The Perfect Gentleman: The Life and Letters of George Washington Custis Lee, Vol. 1 (Xulon Press, 2003; discusses the letter on pp. 92-94).

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Who Killed Constable Cock? American Civil War Veterans in a British Case

Constable Cock, murder victim.

Constable Cock, murder victim. Courtesy of Angela Buckley, public domain.

It was dark.

The clocks on Manchester’s towers were ticking towards midnight on August 1, 1876 when one of the most sensational crimes of Victorian England occurred. A gibbous moon was setting in the west, but you probably wouldn’t have seen it. The night was clouded and trees overhung the lane as 21-year-old Constable Cock picked his way along his beat.

Heading north on Manchester Road in the village of Chorlton-cum-Hardy, Constable Cock overtook a law student, John Massey Simpson, who was heading home. They walked together for awhile. At the intersection of West Point, another policeman, Constable Beanland joined them for a brief chat before Simpson started east along Upper Chorlton Road. He only walked about 150 yards when two shots rang out behind him, following a man’s voice: “Murder, murder! Oh, I’m shot!”

Simpson ran back to find Constable Cock on the ground, blood spurting from his chest, and Beanland standing over him, blowing his whistle to alert other policemen on their beats. Nicholas Cock died before he had a chance to say who killed him.

Thus began one of England’s most spectacular murder cases – famous not only for the cold-blooded killing of a police officer, but for a Perry Mason-like twist that later turned the entire case on its head. Constable Cock has never been forgotten in England. Even today, police officers on

Constable Cock has never been forgotten in England. Even today, police officers on beat in Chorlton-cum-Hardy stop by his grave to pay their respects.

An American Civil War connection

Angela Buckley has just published a book on the Constable Cock case, the second in her Victorian Supersleuth series. I won’t give away the twist – it would spoil the book for you – but can say that one of the surprising aspects for me was the connection to the American Civil War.

Buckley’s book covers two sensational Victorian crimes because one influenced the other. A murder in the Fenian Rising nine years before Constable Cock’s murder changed public sentiment. And that influenced the Constable Cock Case. Instrumental in the Fenian Rising and the murder were two Civil War veterans, Thomas Kelly and Timothy Deasy, who returned to Europe after the war.

Angela Buckley joins us today to talk about the connection between the two cases.

Welcome, Angela!

Angela Buckley, author.

Angela Buckley, with permission.

Colonel Thomas Kelly and Captain Timothy Deasy were both American Civil War veterans, yet they sparked one of the most sensational criminal trials of Victorian Britain. How did that come about?

Following the American Civil War, many members of Irish Republican Brotherhood (also known as the Fenians) returned to their homeland to continue the battle against the British authorities for home rule. Veteran Colonel Thomas J. Kelly was instrumental in planning the Fenian Rising of 1867. When the campaign failed, Colonel Kelly was arrested but later escaped.

Later that year, Kelly was re-arrested in Manchester, along with one of his colleagues, Captain Timothy Deasy. On 18 September, the prisoners were being transported to prison when the police van was attacked by their supporters. Kelly and Deasy were liberated but only after a police officer Sergeant Charles Brett had been shot dead. A massive manhunt followed, which led to the arrest of some 50 Irish men in the city. On 23 November 1867, William Allen, Michael Larkin and Michael O’Brien were hanged for Sergeant Brett’s murder and became known as ‘The Manchester Martyrs’. Colonel Kelly and Captain Deasy fled back to the US.

Colonel Thomas Kelly played an important role in the Fenian Rising.

Colonel Thomas J. Kelly, via Wikipedia, public domain.

Were they ever tried themselves?

 No, Thomas Kelly and Timothy Deasy were never re-captured and both took refuge in the US. Colonel Kelly remained a member of the Irish Republican Brotherhood in New York and died in the city in 1908. He is buried with his wife in Woodlawn Cemetery, The Bronx.

What kind of a career did the two have in the Civil War?

Timothy Deasy had migrated from Ireland to America with his family in 1847. In 1861, he enlisted in the 9th Massachusetts Volunteer Infantry Regiment, primarily made up of Irish-Americans. He fought in 32 engagements showing considerable gallantry and leadership. Despite being wounded in the Battle of Spotsylvania, Deasy remained in command of his company. At the end of Civil war, he became a captain in the Irish Republican Brotherhood.

Thomas Kelly was also a ‘battle-hardened’ veteran of the Civil War. He had emigrated to the US from Ireland in 1851. During the Civil War he served in the 10th Ohio Volunteer Infantry, also an Irish regiment. He was promoted to First Sergeant of C Company in the summer of 1861. Like Deasy, Kelly was badly wounded but continued his service. He attained the rank of captain.

Postage stamp commemorating the 100th anniversary of the Fenian Rising.

Postage stamp commemorating the 100th anniversary of the Fenian Rising. Boris15 / Shutterstock.com, with permission.

How did these two Civil War veterans influence prejudice against the Irish?

The nationalist fervour of both these men was renewed during the American Civil War and, in 1865, they were ready to take arms against the British authorities. This led to a more organised campaign with greater structure and focus. Colonel Kelly took charge of Fenian operations in Manchester and Captain Deasy was stationed in Liverpool. Terror of Irish nationalism and the Fenians was already rife in mainland Britain, and this new campaign sent Victorians of all levels of society into an acute panic, reinforcing their long-held prejudice against the Irish in general.

Your book is about the murder of a Victorian police officer that was sensationalist in its own right. Nevertheless, Kelly’s and Deasy’s actions had a huge influence on the Constable Cock case. How?

Although the murder of Constable Cock took place almost a decade after that of Sergeant Brett, the Fenian uprising in Manchester was still fresh in the minds of the city’s inhabitants. As the prime suspects were three Irish brothers, known locally for their drinking and belligerence, their case was seriously prejudiced by contemporary opinions, despite there being no real proof for such assumptions and only the flimsiest of evidence against them. Furthermore, at that time in Manchester, 25 per cent of convicted criminals were Irish and a third of prisoners in its principal gaol were Catholic. At the Habron brothers’ trial, most of the witnesses for the defence were illiterate Irish co-workers, whose testimonies were discounted.

Lord Justice Lindley presided over the trial for Constable Cock's murder.

Lord Justice Lindley presided over the first trial for Constable Cock’s murder.

A critical piece of evidence in the Constable Cock case dealt with footprint evidence. How advanced were footprint comparisons as a forensic tool in 1876?

By 1876, the identification of suspects through footprint analysis was a fairly common practice used by the British police. However, the methods were still very rudimentary. In this case, the investigating officer, Superintendent James Bent, made impressions with the suspects’ boots next to the footprints near the crime scene and then compared the two – he even had to cover the prints with a cardboard box to preserve them when it started to rain! Despite the absence of any scientific analysis, Superintendent Bent was satisfied that the prints near the spot where Constable Cock was murdered had been made by his prime suspect William Habron. The boot prints were the main evidence on which Habron was tried for murder.

_______________________________________________________

Thank you, Angela!

Who Killed Constable Cock, book cover

Who Killed Constable Cock, book cover, courtesy of Angela Buckley.

Read Angela’s book, Who Killed Constable Cock, to get a completely different view of the evidence.

Literature on point:

Moonrise, Moonset, and Phase Calendar for London, August 1876

August 1876 Moon Phases

Angela Buckley, Who Killed Constable Cock?: A Victorian True Crime Murder Case (Manor Vale Associates, 2017)

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Dying Declaration: Judicial Musket Fire in the Boston Massacre

Dying declaration.

jorisvo, Stained glass window depicting an old man of his deathbed, surrounded by family. Stained glass window in the German Church in Stockholm, Shutterstock.

It’s perhaps fitting that one of the most controversial hearsay exceptions was first used in one of the most controversial trials of United States history. The muskets the British soldiers fired in the Boston Massacre found their marks in American patriotism. The massacre became a watershed event in American history – one of the events that incited the American Revolution.

A statement defense attorney John Adams introduced into evidence also echoed through the hallways of judicial history. The Boston Massacre trials marked the first time the American history the dying declaration was used as evidence.

What is the dying declaration? Why is it so controversial? And what role did it play in the Boston Massacre?

The dying declaration as a hearsay exception

Hearsay is one of those boundary stones that demarcate the law of evidence. It consists of an out-of-court statement, made by anyone other than a defendant, offered into evidence to prove the truth of the matter asserted. Courts exclude hearsay because it isn’t as reliable as court testimony – it isn’t made under oath and isn’t subject to cross-examination. The jury can’t judge the declarant’s demeanor.

But there are lots of exceptions. One of them is called the dying declaration.

Here’s how the Federal Rules of Evidence define the dying declaration. State rules of evidence are similar.

Rule 804. Hearsay Exceptions: Declarant Unavailable

 

(b) Heasay Exceptions: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

….

(2) Statement Under Belief of Impending Death. In a trial for homicide or in a civil action, a statement a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.*

Not a deathbed confession

Note the difference.

A declarant must have made a statement about the cause of what he or she believes to his or her impending death. Some states require that the declarant actually died before allowing the statement into evidence.

Courts consider dying declarations reliable enough to overcome the hearsay rule: A dying person doesn’t have reason to lie, and a statement about the cause of death might be the only evidence available. Think of it as giving the dead a say in court.

When a person clears their conscience on their deathbed, however, and confesses to a crime, law enforcement can use that to help close a case, but it can’t be admitted into evidence.

Shakespeare and the dying declaration

The dying declaration dates all the way back to 1202 – the reign of King John. And that’s perhaps fitting, because Shakespeare includes a dying declaration in his play King John (Act V, scene 4):

Have I not hideous death within my view …
What in the world should make me now deceive,
Since I must lose the use of all deceit?
Why should I then be false, since it is true
That I must die here and live hence by truth?

Dying declaration and the confrontation clause

The possibility that some people might lie on their deathbed makes the dying declaration controversial. In a 2004 decision, the U.S. Supreme Court called many of the traditional hearsay exceptions into question: The lack of opportunity to cross-examine the declarant can violate the confrontation clause of the Constitution. The Court hasn’t specifically addressed the dying declaration, but its future is now in the air.

Boston Massacre

Paul Revere’s engraving of the Boston Massacre (1770, public domain), via Wikipedia.

Dying declaration in the Boston Massacre

As a 34-year-old lawyer, the future President, John Adams, defended the British soldiers. The job guaranteed unpopularity with the American patriots, but Adams felt it was his ethical duty to offer representation. He did a good job, too. Most of the soldiers were acquitted, and for the other two, Adams could reduce the crime down to manslaughter.

Critical to his defense was the dying declaration of Patrick Carr, one of the victims. This testimony constituted the first use of the dying declaration in the American colonies. In violation of colonial law, two British soldiers had fired on a mob of Americans when the soldiers felt threatened. Carr’s deathbed statement to his doctor goes to the cause of his death and indicates a lack of premeditation – an element of murder.

Here is John Adams in the courtroom, examining the doctor on the stand:

John Adams

John Adams, Second President of the United States, Gilbert Stuart [1823, Public domain], via Wikimedia Commons.

Testimony of Dr. John Jeffries

Q. Was you Patrick Carr’s surgeon?

 

A.  I was in the company of others. I was called that evening about eleven o’clock to him…. Dr. Lloyd, who was present, turned round to me and said Jeffries, I believe this man will be able to tell us how the affair was, we had better ask him: I asked him then how long he had been in King-street when they fired? he said he went from Mr. Field’s when the bells rung, when he got to Walker’s corner, he saw many persons coming from Cornhill, who he was told had been quarrelling with the soldiers down there, that he went with them as far as the stocks, that he stopped there, but they passed on: while he was standing there he saw many things thrown at the Sentry. I asked him if he knew what was thrown? He said he heard the things strike against the guns, and they sounded hard, he believed they were oyster shells and ice; he heard the people huzza every time they heard anything strike that sounded hard: that he then saw some soldiers going down towards the Custom House, that he saw the people pelt them as they went along, after they had got down there, he crossed over towards Warden and Vernon’s shop, in order to see what they would do, that as he was passing he was shot, that he was taken up and carried home to Mr. Field’s by some of his friends. I asked him whether he thought the soldiers would fire; he told me he thought the soldiers would have fired long before. I then asked him whether he thought the soldiers were abused a great deal after they went down there; he said he thought they were. I asked him whether he thought the soldiers would have been hurt if they had not fired; he said he really thought they would, for he heard many voices cry out, kill them. I asked him then, meaning to close all, whether he thought they fired in self-defense, or on purpose to destroy the people; he said he really thought they did fire to defend themselves, that he did not blame the man, whoever he was, that shot him. This conversation was on Wednesday. He always gave the same answers to the same questions every time I visited him.

 

Q.  Was he apprehensive of his danger?

 

A.  He was told of it. He told me … he was a native of Ireland, that he had frequently seen mobs, and soldiers called upon to quell them…he had seen soldiers often fire on the people in Ireland, but had never seen them bear half so much before they fired in his life…

 

Q: How long did he live after he received his wound?

 

A. Ten days.

 

Q.  When had you the last conversation with him?

 

A.  About four o’clock in the afternoon, preceding the night on which he died, and he then particularly said, he forgave the man whoever he was that shot him, he was satisfied he had no malice, but fired to defend himself.**

Justice Oliver gave the following instruction to the jury:

This Carr was not upon oath, it is true, but you will determine whether a man, just stepping into eternity, is not to be believed; especially in favor of a a set of men by whom he had lost his life.***

John Adams’s legacy

John Adams later confided to his diary that his representation of the British soldiers was one of the most important things he’d ever done in his life:

The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.****


You might also like: The Five Greatest Criminal Trials of History. It also goes into the witch trials John Adams so despised.

What do you think? Should dying declarations be allowed as evidence?

Literature on point:

****John Adams, diary, March 5, 1773 (public domain).

Crawford v. Washington, 541 U.S. 36 (2004).

*Federal Rules of Evidence.

***Frederic Kidder & John Adams, History of the Boston Massacre, March 5, 1770 (Albany, NY: Joel Munsell, 1870).

Liang, B. A. and Liang, A. C., Lies on the Lips: Dying Declarations, Western Legal Bias, and Unreliability as Reported Speech, Law Text Culture , 5, 2000.

Douglas Linder, “The Boston Massacre Trials.” Jurist (July 2001).

**Trial of the British Soldiers (Boston: William Emmons, 1824).

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Consitutio Criminalis Carolina: Your Rights in a Torture Chamber

Time travel.

Time. Image from Pixabay.

The dangers of time travel

You have to admit you’ve at least thought about it before. What would it be like to fly back in time with a time machine?

What would you want to see? The dinosaurs? The life of Jesus Christ? A historical event you’ve been researching and have lingering questions about?

No matter which trip you select, it would be fraught with danger. The dinosaurs might snack on you. You could get caught in a war. If you plan to visit Renaissance Europe and walk around in your jeans and T-shirt, snapping pictures with your cell phone, you can plan on getting arrested. And in case you get marched into the torture chamber, you probably have no idea what your rights would be.

So just in case you find a time machine in grandpa’s attic and contemplate a trip back a few centuries in time to Europe, you’ll want some advice about the legal system – and your legal rights in the torture chamber.

I’m here to help you.

Time machine.

Stylized steampunk metal collage of time counting device. (c) donatas1205, via Shutterstock.com.

Judicial torture

First, some basic concepts.

Judicial torture – that means torture as a method of collecting evidence and not as a method of punishment – grew out of the Greek and Roman legal systems. By 1252, Pope Innocent IV approved its use in Roman-canon law. That meant it could be used in church procedures (think Inquisition).

When you set the dials on your time machine, your best country to visit, from a judicial perspective at least, would be England. Of all the European countries, England did not adopt Roman-canon law. Instead, it used a jury. Although the English juries evolved over time from investigating bodies to the modern juries we know today, they avoided the judicial torture of continental Europe. In all probability, the members of your English jury would figure out how to turn on your cell phone and get the fright of their lives. But they couldn’t put you on the rack to find out more about it.

As more modern legal systems began to replace the trial by ordeal in continental Europe, judicial torture found acceptance. In fact, people may have found torture not very different – or even a step up from – the medieval ordeals. Trial by ordeal was an ancient religious-judicial procedure to let God decide the case. It meant subjecting the suspect to a dangerous event, e.g. submersion in water. The court interpreted the suspect’s survival as God’s intervention to prove their innocence. Roman-canon law, then, represented an improvement. It increased your chances of surviving a trial.

Torture chamber with rack.

Torture chamber with rack. (c) Ozgur Guvenc, via Shutterstock.com.

Constitutio Criminalis Carolina

Now set the location dial on your time machine to the Holy Roman Empire and the year to 1532. That’s when Emperor Charles V enacted the Constitutio Criminalis Carolina, landmark legislation for criminal law. How is it that this statute, with an awful reputation so often associated with witch trials, actually advanced individual rights?

The Constitutio Criminalis Carolina incorporated many facets of Roman-canon law, but went ever further in balancing the state’s need for an investigation against individual rights. For the first time, a suspect in a criminal investigation had at least some rights against the excesses of the judicial system. The Constitutio Criminalis Carolina also contained some seemingly modern insights – it was the first law to distinguish between first and second-degree murder.

One small stroke from Charles’s pen, one giant leap for individual rights.

Constitutio Criminalis Carolina, front page.

Constitutio Criminalis Carolina. Cover page to a 1577 edition. Imprint: Frankfurt am Main, Johannem Schmidt. Verlegung Sigmund Feyerabends, 1577
By amtliches Werk (Scan from the original work) [Public domain], via Wikimedia Commons

Your rights under the Constitutio Criminalis Carolina

So what would have happened if you started walking around the Holy Roman Empire, snapping pictures, and got arrested? Here’s a small litany of your rights.

No torture without probable cause.

There had to be sufficient suspicion against you before the state could torture you for evidence. A “half-proof” was usually required. That meant half the evidence required to convict you. For example, the Constitutio Criminalis Carolina required two eyewitnesses or an eyewitness and a confession as full proof, so one eyewitness who claimed you committed the crime counted as a half proof and counted as probable cause for judicial torture.

No leading questions!

No leading questions! (c) Everett Collection, via Shutterstock.com.

No leading questions.

Leading questions in the torture chamber can lead to false confessions. Charles V recognized that as early as 1532. So the Constitution Criminalis Carolina banned leading questions. An interrogator could ask what kind of weapon was used in a murder, but not if it was a knife. He could ask where the body was hidden, not if it had been dumped in the local mill pond. And he could ask what your cell phone is supposed to do, but not if it’s an instrument of witchcraft.

The interrogator tried to elicit information only the perpetrator could know – a technique used today in modern law enforcement to weed out false confessions – and leading questions only got in the way.

Of course, it was difficult to enforce the rule. But many in many cases, the court gave the interrogator written questions ahead of time. And since the Carolina also required witnesses to be present in the torture chamber, it might have been more difficult to get around the prohibition against leading questions than many assume.

Corroboration of a confession.

Even if you did confess, the court couldn’t use that against you without corroboration. Pain might lead a witness to say anything. So if you confessed to something specific only the perpetrator could know, let’s say dumping a body in the local mill pond, the court would require the investigator to check it out.

That’s exactly what happened in a murder-robbery case in Germany’s Rhine Valley in the 18th century. When an accessory to the crime reported that the principals dumped the body in a pond, the investigators were required to dredge it. They couldn’t find the body. Normally, then, there wouldn’t have been enough evidence to convict the accessory. In this case, the court did convict the accessory but based on other evidence.

Compensation if tortured illegally.

Here’s a good one. If you could prove you were examined under torture in violation of the law, you were entitled to compensation. Section 20 allowed you to sue the officials who tortured you illegally. Section 20 also eliminated any defense on the officials’ part based on your having waived your rights.

Safe time traveling

Of course, I hope you’re never subjected to torture and that you enjoy your time travels without any legal entanglements. Despite its advances in individual rights, the Constitutio Criminalis Carolina remains abhorrent for its use of torture. Thankfully, Europe abolished torture by the beginning of the 19th century.

The assassination in my book offers some interesting time traveling in this respect. The Kingdom of Württemberg, where the murder took place, abolished torture in 1809. The murder was in 1835. But Württemberg didn’t get around to abolishing the Constitutio Criminalis Carolina until 1843! That means the assassination in my book was one of the last great crimes investigated under the centuries-old law. And it also means that the investigator had to try to prove the case under the old evidentiary system of proof requiring two witnesses or one witness and a confession. Württemberg didn’t recognize circumstantial evidence until 1839 when it adopted a new criminal code.

No wonder, then, that the solution to this case came from America!

You can pick up my book, Death of an Assassin, and enjoy some safe time traveling. And I promise the dinosaurs won’t eat you.

Prehistoric times. Image from Pixabay.

Literature on point:

Clemens-Peter Bösken, Das Ende der grossen rheinischen Räuber- und mörderbande: Der Düsseldorfer Sicehenprozess von 1712 (Erfurt: Sutton Verlag, 2011).

Constitutio Criminalis Carolina (partial translation)

John H. Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Harvard Univ. Press, 1974).

John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime (Univ. of Chicago Press, 1977).

Wolfgang Schild, “ ‘Von peinlicher Frag’: Die Folter als rechtliches Beweisverfahren,” Schriftreihe des mittelalterlichen Krimminalmusuems Rothenburg o.d.T., Nr. 4 (1999).

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