Chapter II: Part 2

We Command you That you Su[=m]on Wm. Brattle Esqr Docter Pinchin of Boston Joseph Rand Junr. Hatter Bartholomew Powers Isaac Rand Phisitian Wm. Kneland, Benjn. Codman Parnel Codman Elizh. Codman Mary Codman Ann Codman Catherine Codman, Pompey Thomas Cuffee and Scipeo negro servants that were Jno. Codman Decd. James Kittle Wm. Foster Phisitian Essex Servant to thomas powers Servt. of Dr. Rand Dinah Servt. of Richd. Foster Esqr Ruth Adams

To appear Before our Justices of our Superiour Court of Judicature Court of Assize and General Goal Delivery now held at Cambridge within & for said County tomorrow at Eight of ye Clock before noon to give Such Evidence in our Behalf (as you know) against Mark a Negro man & Phillis a Negro woman both of Charlestown aforesaid--

Hereof fail not and so soon as may be make return of this Writ with your Doings Therein into the same Court Witness Stephen Sewall Esq. at Boston the sixth Day of August in the twenty ninth year of our Reign Annoq. Domini 1755

SAML WINTHROP _Cler_

[_Endorsed Return._]

MIDDLESEX ss. August 7, 1755

We have somoned the persons within named to appear & Give Evidence at the time & place within mentioned.

JAMES KETTELL, _Dept Sheriff_,
& JOHN MILLER
_Constabel_.

PROVINCE OF THE } _George the Second by the Grace of God of MASSACHUSETTS BAY ss } Great Britain France & Ireland King Defender of the Faith &c._

To the Sheriff of our County of Suffolk his under Sheriff
SEAL. or Deputy or to any Constable of the Town of Boston in
sd. County Greeting

We Command you that you Summon The Wife of Ichabod Jones Eliza. Mercy Car, a negro man servant of John Gibbins Apothecary Quaco the servt. of ---- Dalton Quaco a Negro man belonging to mr. John White

To appear before our Justices of our Superiour Court of Judicature Court of Assize & General Goal Delivery now holden at Cambridge within and for said County Tomorrow morning at Eight of ye Clock before noon Then and there to give Such Evidence in our Behalf as you know against Mark a Negro man & Phillis a Negro woman both of Charlestown in our County of Middlesex--

Hereof Fail not and so soon as may be make Return of this Writ with your Doings therein into the same Court

Witness Stephen Sewall Esq. at Boston the Sixth Day of August in the twenty ninth year of our Reign Annoq, Domini 1755

SAML WINTHROP _Cler_

[_Record of the Case._]

PROVINCE OF THE } _Anno Regni Regis Georgii secondi Magnae MASSACHUSETTS BAY } Britanniae Franciae Hiberniae vicesimonono._ MIDDLESEX ss. }

At his Majestys Superiour Court of Judicature Court of Assize and General Goal Delivery began and held at Cambridge within and for the County of Middlesex on the first Tuesday of August Annoque Domini 1755--

By the Honoble. Stephen Sewall Esqr: Chief Justice
Benjamin Lynde[4] }
John Cushing & } Esquires Justices
Chambers Russell }

[Footnote 4: Judge Lynde makes a memorandum of this trial, and of the particulars of the executions, in his diary under date of July 9, 1755.--Lynde Diaries (privately printed, 1880), p. 179.--EDS. OF PROCEEDINGS.]

[_After reciting the words of the indictment, the record proceeds as follows, being, as far as where the record of the trial and sentence begins, an extension of a memorandum on the indictment._]

Upon this Indictment the said Phillis was arraigned and upon her arraignment pleaded not guilty and for trial put herself upon God and the Country and the said Mark was also arraigned upon this Indictment and upon his arraignment pleaded not Guilty and for trial put himself upon God and the Country, a Jury was thereupon Sworne to try the issue Mr. John Miller Foreman and fellows who having fully heared the Evidence went out to consider thereof and returned with their verdicts and upon their oath's say'd that the said Phillis is Guilty, and that the said Mark is Guilty, upon which the prisoners were remanded, and being again brot and set to the Bar, the Kings Attorney moved the Court that Judgment of Death might be given against them, whereupon they were asked by the chief Justice if they had ought to say why Judgment of Death should not be given against them, and having nothing material to offer Judgment of Death was pronounced against them by the chief Justice in the name of the Court in form following that is to Say that the said Phillis go from hence to the place where she came from, and from thence to the place of Execution & there be burnt to Death, and that the said Mark go from hence to the place where he came from, and from thence be drawn to the place of Execution and there be hanged by the neck until he be dead and God Almighty have mercy upon their Souls. Ordered that these Sentences be put into Execution upon thursday the eighth[5] day of September next between the hours of one and five of the Clock in the Afternoon.

[Footnote 5: An error. It should have been "eighteenth."]

Warrant issued Sep. 6. 1755.

[_Writ of execution, or death-warrant._]

PROVINCE OF THE } _George the second by the Grace of God of MASSACHUSETTS BAY } Great Britain France and Ireland King MIDDLESEX ss. } Defender of the Faith &Ca_

SEAL. To Richard Foster Esqr. Sheriff of our County of Middlesex
in Said Province

Greeting

Whereas at our Superiour Court of Judicature Court of Assize and General Goal Delivery begun and held at Cambridge within and for the County of Middlesex on the first Tuesday of August last the Grand Jurors for us for the Body of our said County of Middlesex did on their Oath Present That Phillis a Negro woman of Charlestown in the County of Middlesex Spinster Servant of John Codman late of Charlestown aforesaid Gentleman, not having the fear of God before her Eyes, but of her malice forethought contriving to deprive the Said John Codman her Said master of his life and him feloniously and Traiterously to kill and murder, she the said Phillis on the thirteenth day of June last at Charlestown aforesaid in the dwelling house of the said John there did of her malice forethought willfully felloniously and Traiterously put a Deadly Poison called Arsenick into a Vial of Water and thereby did then and there Poison the same water--and That the said Phillis knowing the water aforesaid to be so poisoned did then and there feloniously willfully traiterously and of her malice forethought put one spoonfull of the same water so poisoned into a pint of the said John's watergruel and thereby poison the same watergruel--and that the said Phillis did then and there of her malice forethought felloniously willfully & traiterously in manner as aforesaid poison the watergruel aforesaid, with a felonious and traiterous Intent and design that the said John her said master then being should then and there eat the Same Watergruel so poisoned and thereby be Poisoned killed and murdered. And that one Elizabeth Codman not knowing the watergruel aforesaid to be so poisoned then and there Innocently gave the Same Watergruel so poisoned as aforesaid to the Said John to eat, and that the Said John then and there being the said Phillis's master and being altogether Ignorant of the watergruel aforesaid's being poisoned as aforesaid and suspecting no Evil did then & there eat the same watergruel so poisoned as aforesaid & that the said Phillis then and there was feloniously and traiterously present with the said Elizabeth & John knowing of & consenting unto the sd. Elizabeth's giving him the said John the watergruel aforesd. so poisoned as aforesaid & his eating the same as aforesd. And that the said John by means of his eating the watergruel aforesaid so poisoned as aforesaid there Languished for the space of Fifteen hours & then at Charlestown aforesaid died of the Poison aforesd. given him as aforesaid--and so the Jurors aforesaid upon their Oath said that the said Phillis did at Charlestown aforesaid of her malice forethought in manner and form aforesaid willfully feloniously and traiterously poison kill & murder the said John Codman her Said master against our Peace Crown & Dignity, and The Jurors aforesaid upon their Oath further present That Mark a Negroman of Charlestown aforesaid Labourer and Servant of the said John Codman before the said Treason and murder aforesaid committed by the said Phillis in manner and form aforesaid did at Charlestown aforesaid on the twentieth day of June last of his malice forethought (the said Mark then being Servant of the said John Codman) felloniously & traiterously advise and incite procure & abet the Said Phillis to do & commit the said Treason & murder aforesaid against our peace crown & Dignity (as in Said Indictmt. is at large Set forth) upon which Indictment the said Phillis and Mark were Severally arraigned and upon their arraignment Severally pleaded not Guilty and for Tryal put themselves on God and the Country, and Whereas the said Phillis & Mark at our Court aforesaid were each of them convict of the crime respectively alledg'd to be committed by them as aforesaid by the Verdict of twelve good & lawful men of our Said County and were by the consideration of our Said Court adjudged to Suffer the Pains of Death therefor; as to us appears of Record Execution of which said Sentence doth still remain to be done we command you therefore that on Thursday the Eighteenth day of September instant between the hours of one & Five o'Clock in the day time you cause the said Phillis to be drawn from our Goal in our County of Middlesex aforesaid (where she now is) to the place of Execution and there be burnt to Death & also that on the Same day between the hours of one & five of the Clock in the day time you cause the Said Mark to be drawn from our Goal in our County of Middlesex aforesaid (where he now is) to the place of Execution & there be hanged up by the Neck until he be dead, & for so doing this shall be your Sufficient Warrant--Hereof fail not; and make Return of this writ with your doings therein into the Clerks Office of our Said Court as soon as may be after you have Executed the Same Witness Stephen Sewall Esqr: at Boston the sixth day of September in the Twenty ninth Year of our reign Annoque Domini 1755--

By Order of Court

NATHANIEL HATCH _Cler_

MIDDLESEX. ss--September the 18th. 1755.

I Executed this warrant as above directed, by causing Phillis to be burnt to Death, and Mark to be hang'd by the neck until he was dead, between the hours of one and five a Clock of Said day--

RICHD. FOSTER _Sheriff_

* * * * *

It is worthy of observation that no such process as a formal warrant was required for a capital execution by the laws of England. In the King's Bench, the prisoner was committed to the custody of the marshal at the beginning of the trial, and an award of judgment upon the record was all the authority that that officer had for the execution. Formerly, it was customary in courts of oyer and terminer, and of jail delivery, to authorize the execution by a precept under the hands and seals of three or more commissioners, of whom one, at least, should be of the quorum; but this custom had become obsolete at the time of this trial, and only a calendar, or abstract of the record, subscribed by the judge, was put into the hands of the sheriff for this purpose; and such is the practice in England, I presume, to this day.

Even Blackstone, who is so blind to many gross imperfections in the jurisprudence of his native country, is forced to remark, in view of the looseness of procedure in capital cases,--

"It may certainly afford matter of speculation that in civil
causes there should be such a variety of writs of execution
to recover a trifling debt, issued in the king's name, and
under the seal of the court, without which the sheriff
cannot legally stir one step; and yet that the execution of
a man, the most important and terrible task of any, should
depend upon a marginal note."[6]

[Footnote 6: Comm. book iv. ch. 32, p. 403.]

The courts and people of New England were always more mindful of the sacredness of human life than those of other nations, save, perhaps, the little community of the Netherlands. They also attached great importance to the formal proceedings by which the ends of justice were reached in criminal cases. This is well illustrated by an incident that is recorded relative to the action of the judges of the Superior Court of the Province when, after the conviction of Richardson for the murder of the boy Sneider, in 1770, it became evident to them that the cause of justice required that they should intercede to prevent his execution. They were long in doubt as to the sufficiency of a pardon obtained from the crown through the recommendation of the Lieutenant-Governor upon their certificate of its propriety, the only evidence of the pardon being its insertion in the Newgate Calendar. Hutchinson relates that "they were at length satisfied; and the prisoner having been brought into court early in the morning, when scarcely anybody but the officers of the court were present, pleaded his Majesty's pardon, and was discharged, and immediately absconded."[7]

[Footnote 7: Hist. Mass. Bay, vol. iii. p. 287, n.]

But, to proceed with a definition of the crime committed by these negroes, and a more particular account of the punishment for petit treason:--

By the statute 25 Edw. III., this crime, which had had a wider application, was restricted to three classes of cases: 1, where a servant killed his master or mistress; 2, where a wife killed her husband; 3, where a clergyman killed his prelate, or the superior to whom he owed canonical obedience. The sentence in the case of a woman was, that she be burned to death, and in the case of a man, that he be drawn to the place of execution and there hanged by the neck until he be dead.[8] To mitigate the sufferings of felons at the stake, the executioner usually fastened one end of a cord to the stake, and bringing this cord around the neck of the woman, pulled it tightly the moment the torch was applied, and continued the strain until life was extinct, which, unless the cord was sooner burnt asunder, generally happened before the condemned had suffered much from the intensity of the flames.

[Footnote 8: By stat. 22 Hen. VIII. ch. 9, a person of either sex, who was convicted of murdering another by poison, was to be boiled to death, and the offence was, by the same act, declared high treason; but this act was repealed by 1 Edw. VI. ch. 12, after several executions under it, including that of Margaret Davy, who poisoned her mistress. Though by the common law poisoning was deemed a most atrocious circumstance, it did not alter the punishment of the principal crime involved. The law considered only the crime, and not the manner in which it was committed.]

In cases of high treason, other barbarities were practised upon the bodies of the criminals, but these were frequently, and in cases of persons of distinction, generally, remitted. Indeed, even the hanging was dispensed with in these latter cases; and hence we read of the execution of great prisoners of state, male and female, by beheading, which, strictly, is a manner of death unknown to the laws of England, except as an incident to the principal penalty by hanging or burning. After the hanging, the body, according to rule, was to be cut down (if possible, while yet alive) to be eviscerated, then beheaded, and the trunk and limbs divided into four parts, to be disposed of as the sovereign should order. By special writ, under the privy seal, all these circumstances, except decapitation, were, as I have already said, usually omitted.

All male persons convicted whether of high treason or of petit treason were, unless specially exempted in the manner I have stated, _drawn_ to the place of execution. This was originally an ignominious incident of the terrible penalty, and required that the criminal should be rudely pulled along over the ground, behind a horse; later, however, a hurdle or wicker frame, or a sledge,--that is, as we call it, a sled,--was used, either from motives of humanity, or in order to prolong the life of the traitor through subsequent stages of the punishment. According to Sir Matthew Hale, women were not to be drawn, in cases of petit treason, although the practice of later times, certainly, was to the contrary.[9] However, after the repeal in 1790, of the law for burning women, for which drawing and hanging were then substituted, women as well as men were sentenced to be drawn to the place of execution.

[Footnote 9: The law was uncertain; but Hale appears to be the safest authority. Wood, in his Institutes,--at the time of this trial the most recent and popular treatise upon the laws of England,--states that women were to be drawn, in petit treason; as, indeed, do most, if not all, succeeding writers. They follow Coke, 3 Inst. 211; but neither the statutes referred to, nor the case cited from 12 Ass. 30, by the latter, support his statement. The report runs thus: "Alice _de W, qui fuit de l'age de xiij ans, fuit arse per judgment, pur ceo que el'avoit tue sa Maistres, & pur tant ceo fuit adjudge treason, &c._;" and it appears that the case turned upon the question of accountability, by reason of the tender age of the culprit. No mention of drawing is made in the judgment. Compare H.P.C., i. p. 382, and note, with Hawk. P.C., b. 2, ch. 48, Sec. 6, and authorities there referred to, and Coke, _ut supra_. Also, see 4 Black. Comm. 204. It will have been noticed that though the judgment against Phillis was that she _go_ to the place of execution, the warrant required that she be drawn thither. The practice of drawing, in such cases, would have been challenged, probably, if the cruelties anciently incident thereto had not become obsolete.]

Another incident to this punishment, though not peculiar to it, since it applied to all atrocious felonies, was the gibbeting, or hanging in chains. This was no part of the sentence, but was performed in accordance with a special order or direction of the court, given, probably, in most cases, verbally to the sheriff. After execution, the body of the felon was taken from the gallows and hung upon a gibbet conveniently near the place where the fact was committed, there to remain, until, from the action of the elements, or the ravages of birds of prey, it disappeared. Of the object of this ghastly feature of capital punishment it is alleged, "besides the terror of the example," "that it is a comfortable sight to the friends and relations of the deceased"; but the obviousness of this reason is somewhat lessened by the doubt in which we are left as to which deceased person, the criminal or his victim, is referred to. In the case of Mark it is noticeable that no sentence to the gibbet appears in the record, and I have found no order for it, or mention of it, in the papers on file.

Phillis and Mark were executed at the usual place of execution in Cambridge; and the following account of the affair is taken from the Boston "Evening Post," of Sept. 22, 1755:--

"Thursday last, in the Afternoon, _Mark_, a Negro Man, and
_Phillis_, a Negro Woman, both Servants to the late Capt.
_John Codman_, of _Charlestown_, were executed at
_Cambridge_, for poisoning their said Master, as mentioned
in this Paper some Weeks ago. The Fellow was hanged, and the
Woman burned at a Stake about Ten Yards distant from the
Gallows. They both confessed themselves guilty of the Crime
for which they suffered, acknowledged the Justice of their
Sentence, and died very penitent. After Execution, the Body
of _Mark_ was brought down to _Charlestown_ Common, and
hanged in Chains, on a Gibbet erected there for that
Purpose."

Frothingham, in his "History of Charlestown,"[10] quotes this item from the "Post," and adds, from Dr. Josiah Bartlett's account of Charlestown,[11] that "the place where Mark was suspended in irons was on the northerly side of Cambridge Road, about one fourth of a mile above our peninsula." He also adds, from the same authority, that "Phebe, who was the most culpable," became evidence against the others, and that she was transported to the West Indies.

[Footnote 10: Page 264.]

[Footnote 11: 2 Mass. Hist. Coll., vol. ii. p. 166, and note.]

It is very likely that Phebe was transported, as described by Dr. Bartlett, but there is nothing on record to show that she was used as a principal witness. Indeed, the answers of Phillis and Mark on their examination are mutually recriminative, and amount to a plenary confession of the crime of each. Besides, as neither the governor nor the court had any authority to grant a pardon for murder,[12] it is not likely that any favor was shown to her in accordance with a promise from either, nor is there any evidence that any lenity was actually extended to her, except the negative circumstance that she was not included in the indictment.

[Footnote 12: See Hutchinson's Hist. Mass. Bay, vol. iii. p. 287, n. Instances of pardons and reprieves occur in our judicial history, but they were invariably granted in the name of the king, by the commander-in-chief; and, if for a graver offence than manslaughter, it seems to have been understood that a pardon was not to be granted without previous express direction from the king. This was in compliance with a clause in the royal instructions, issued to all the governors, by which they were enjoined not to remit any fines or forfeitures above L10 in amount, or to dispose of escheats, without the royal sanction; forfeiture of lands and chattels being a consequence of attainder upon conviction of the higher class of felonies. The commission to Andros expressly excepted treason and murder from the offences which he was authorized to pardon.]

This completes the narrative of this remarkable case. The body of Mark is said by Dr. Bartlett to have remained on the gibbet "until a short time before the Revolution." Certain it is that when Dr. Caleb Rea passed through Charlestown on the first day of June, 1758, on his way from Danvers to join the regiment, of which he had been chosen surgeon, in the expedition against Ticonderoga, he found the body hanging, and, having examined it, recorded in his journal that "his [Mark's] skin was but very little broken, although he had hung there near three or four years."[13]

[Footnote 13: Hist. Coll. Essex Inst., vol. xviii. p. 88, n.]

Finally, another patriot,--Paul Revere,--in describing his famous ride on the 18th of April, 1775, on a still more important errand, says, "After I had passed Charlestown Neck, and got nearly opposite where _Mark was hung in chains_, I saw two men on horseback under a tree,"[14] &c.; thus alluding to the site of the gibbet as a place well known at that time,--as undoubtedly it was, to all the country round.

[Footnote 14: Letter of Colonel Revere to Cor. Sec. of Mass. Hist. Soc., Jan. 1, 1798: 1 Mass. Hist. Coll., vol. v. p. 107.]

I have said that this is the only case of petit treason to be found in our records. There was, indeed, an earlier case in which the penalty of death by burning was inflicted; but in regard to that case there is no suggestion anywhere to my knowledge that the crime of petit treason had been committed, nor any allegation to that effect in the charge or indictment, nor even a hint that any life was lost by the misconduct of the condemned.[15] This was the case of Maria, a negress, who was executed at Roxbury in 1681. Perhaps it will be well to give the story of this case as it appears on the records of the Court of Assistants.[16]

[Footnote 15: Although the record contains no allegation of loss of life, Increase Mather states in his diary, under date of Sept. 22, 1681, that a child was burnt to death in one of the houses set on fire by this negress. Even if this were true, it is not probable that the relation of master and servant subsisted between the deceased and Maria, and neither this relation, nor the fact of treason, is averred in the indictment. See Mass. Hist. Soc. Proc., vol. iii. p. 320.]

[Footnote 16: Boston, Sept. 6, 1681.]

"Marja[17] Negro Servant to Joshua Lambe of Roxbury in the
County of Suffolk in New England being presented by the
Grand Jury was Indicted by the name of Marja Negro for
not hauing the feare of God before hir eyes & being
Instigated by the divil at or upon the eleventh Day of July
last in the night did wittingly willingly & felloniously set
on fier the dwelling house of Thomas Swann of sd Roxbury by
taking a coale from vnder a still & carrjed it into another
Roome and layd it on floore neere the doore & presently went
& crept into a hole at a back doore of thy master Lambs
house & set it on fier also taking a liue coale betweene two
chips & carried it into the chimber by which also it was
Consumed as by yr Confession will appeare Contrary to the
peace of our Soueraigne Lord the king his croune & dignity
the lawes of this Jurisdiction in that Case made & prouided
title firing of houses--The prisoner at the barr pleaded &
acknowledged hirselfe to be Guilty of ye fact. And
accordingly the next day being Again brought to the Barr
had sentenc of death pronnonc't agt hir by the
Honnoble Gounor. that she should Goe from the barr to
the prison whenc she came & thence to the place of execution
& there be burnt.--Ye lord be mercifull to thy Soule
sd ye Gov."

[Footnote 17: I have followed Secretary Rawson in his peculiar use of the letter j. See many similar instances in the Mass. Colony Records.]

The case was capital under the act referred to in the record. The act reads as follows:--

[Sidenote: Burning Houses.]

[Sidenote: Capital.]

And if any person of the age aforesaid, [16 years and
upwards] shall after the publication hereof, wittingly and
willingly, and felloniously, set on fire any _Dwelling
House_, _Meeting House_, _Store House_, or shall in like
manner, set on fire any _out-House_, _Barn_, _Stable_,
_Leanto_, _Stack of Hay_, _Corn or Wood_, or any thing of
like nature, whereby any _Dwelling House_, _Meeting House or
Store House_ cometh to be burnt, the party or parties
vehemently suspected thereof, shall be apprehended by
Warrant from one or more of the Magistrates, and committed
to Prison, there to remain without Baile, till the next
Court of Assistants, who upon legal conviction by due proof,
or confession of the Crime, shall adjudge such person or
persons to be put to death, and to forfeit so much of his
Lands, Goods or Chattels, as shall make full satisfaction,
to the party or parties damnified. [1652.][18]

[Footnote 18: Mass. Colony Laws, ed. 1672, p. 52.]

It will be observed that the law prescribes no such punishment as was ordered by the Assistants, and how the court were satisfied of the legality of their sentence is to me inexplicable, except upon the possible claim that they might rightfully exercise the expansive discretion which they applied to the case of the first Quakers, and so supply a deficiency in the ordinances of the General Court, by administering the _lex talionis_[19] in this particular instance as a necessary terror to evil-doers.

[Footnote 19: Exodus xxi. 25. "In all criminall offences, where the law hath prescribed no certaine penaltie, the judges have power to inflict penalties, according to the rule of God's word."--Declaration of the General Court: Hutch. Coll. Papers, p. 207. And see the first article of the Colonial "Liberties," in Mass. Hist. Coll., vol. viii. p. 216.]

The public opinion which permitted the colonial magistrates to exercise, unchallenged, a discretion not given to them by positive law, as in this case and that of the first Quakers, and in the instance of their conviction of a capital crime, of Tom, the Indian, in 1674,[20] of whose guilt the jury were doubtful, cannot be deemed to have enlarged their authority, by _custom_, without a perversion of language and a disregard of fundamental distinctions relative to the nature and source of law.[21]

[Footnote 20: Records of the Court of Assistants, 1674, p. 14.]

[Footnote 21: By the stat. 8 Hen. VI. ch. 6, the burning of houses, after a threat to do so if money be not paid, &c., was made high treason, and the incendiary suffered as any other traitor; that is, if a woman, she was burned to death. But this statute was repealed in the reign of Edward VI., as regards the treason, and the offence remained felony as at the common law, and punishable by hanging only.

That mistaken notions as to the nature of penalties to be inflicted in criminal cases, and as to the authority of the bench to impose unusual punishments, were not solely entertained in this distant colony, and among men not bred to the law, may be shown by many instances in the English law-books. One of the most notable is Sir Edw. Coke's reference to the case of Peter Burchet, a prisoner in the Tower,--who slew his keeper with a billet of wood, which drew blood,--as an authority for inflicting the additional punishment of cutting off the hand (under the stat. 33 Hen. VIII.) in the case of murder perpetrated in the king's palace, when attended with bloodshed. In Elderton's case, Chief Justice Holt, whose habits of thorough research were not less remarkable than his absolute fairness and honesty, said, "I have searched for the case cited [as Jones's case] about killing a man in the Tower. It is Burdelt and Muskett's case. Being dissatisfied with my Lord Coke's report of it, therefore I sent for the record, ... and there is judgment of death given, but no judgment that his right hand should be cut off. It is indeed so related in Stowe's Chronicle, and in fact his hand was cut off, but there was no judgment for it." Compare 3 Inst., ch. 65 (p. 140 [Symbol: dagger]) with 2 Ld. Raym., 978, 982.]

Two other negroes who were suspected of complicity with Maria were ordered to be transported. The record is as follows:--

[Sidenote: "Chessaleer negros Sentence"]

Chessaleer negro servant to Tho. Walker brickmaker now in
Goale on suspition of Joyning wth Marja Negro in Burning
of Dr Swans' & ---- Lambs houses in Roxbury in July last
The Court on Consideration of the Case Judged it meet to
order that he be kept in prison till his master send him
out of the country & then dischardg ye charges of
Imprisonment wch if he refuse to doe aboue one moneth the
country Tresurer is to see it donne & when ye chardges be
defrayd to returne the ouerplus to ye sd Walker

[Sidenote: James Pembertons negro sentence]

The like Judgment & sentenc was declard against James
Pemberton's negro in all respects as agt Chessaleer
negro &c.[22]

[Footnote 22: Record of the Court of Assistants, _ubi supra_, pp. 138, 139.]

Still another negro was convicted, at the same term of the court, of the crime of arson, and ordered to be hanged, and afterwards consumed to ashes in the same fire with Maria, as appears by the following record:--

[Sidenote: Jack negro Jndicted & sentenc]

"Jack negro servant to Mr Samuel Woolcot of
Weathersfield thou art Jndicted by the name of Jack Negro
for not hauing the feare of God before thy eyes being
Instigated by the Divill did at or upon the foureteenth day
of July last 1681 wittingly & felloniously sett on fier
Leiftenat Wm Clarks house in North Hampton. by taking
a brand of fier from the hearth and swinging it vp & doune
for to find victualls as by his confession may Appeare
Contrary to the peace of our Soueraigne Lord the King his
Croune & dignity the lawes of God & of this Jurisdiction in
that case made & prouided title firing of houses page (52)
to wch Jndictment at the barr he pleaded not Guilty, &
Affirmd he would be trjed by God & the Country and after his
Confessions &c were read to him & his owni[=g] thereof were
Comitted to the Jury who brought him in Guilty and the
next day had his sentence pronounct agt him by the
Gouernor that he should goe from the barr to the place
whence he came & there be hangd by the neck till he be
dead & then taken doune & burnt to Ashes in the fier wth
Marja Negro--The Lord be mercifull to thy soule sajd the
Gouernor"[23]

[Footnote 23: _Ibid._]

There was some excuse for the latter part of this sentence, for since the offence was an atrocious felony, such as in England would subject the offender to an infamous punishment, it seemed proper to attach something more of ignominy to his sentence than the mere execution by hanging.

Our forefathers of the colonial period regarded the Mosaic law as of too sacred obligation to be impaired in the least degree; much more to be expressly contravened by the courts of justice in respect to the command,--

"And if a man have committed a sin worthy of death, and he
be to be put to death, and thou hang him on a tree, his body
shall not remain all night upon the tree, but thou shalt in
any wise bury him that day; (for he that is hanged is
accursed of God;) that thy land be not defiled, which the
Lord thy God giveth thee for an inheritance."[24]

[Footnote 24: Deut. xxi. 22, 23.]

--they, therefore, by an ordinance passed in 1641, had required that the body of every executed criminal should be buried within twelve hours after death, except in cases of anatomy, which prevented the possibility of hanging in chains after the English fashion; and the only way in which they could set a mark of infamy upon the deceased criminal, without a breach of the colonial ordinance as well as of the divine law, was to burn the body.[25]

[Footnote 25: The ordinary punishment for all capital felonies during the colonial regime seems to have been simply hanging. Heretics and witches were subjected to no severer penalty; and in 1674, Robert Driver, who was convicted of murdering his master, Robert Williams of Piscataqua, and who thus incurred the penalty for petit treason, was sentenced to be "hanged by the neck until he be dead."--See Records of the Court of Assistants.]

But this tendency to a strict adherence to the laws of Israel disappeared early in the provincial period, under the operation of the same causes which led to the abandonment of those rugged metaphrases of the Psalms of David, and of the song of Deborah and Barak, &c., contained in the Bay Psalm-Book, for the smoother though less literal version of Tate and Brady and the presumptuous "Imitations" of Dr. Watts. When, therefore, under the new charter the offence called for it according to the custom of England, the gibbet was erected; and though the occasions for its employment were very rare, the report of sundry instances of its use has come down to us, as in the case of the pirates whose bodies hung in chains, from time to time, on the now vanished Bird Island in Boston Harbor, a locality as near the place where the fact was committed as could conveniently be used. I confess I find it impossible to understand whence the provincial judges claimed to derive their authority for ordering the bodies of criminals to be hung in chains. We have seen that, even if our fathers brought with them the right to exercise this authority, they soon enacted provisions entirely inconsistent with the practice; and I am not aware of any subsequent act of parliament, extending to the Colonies, that restored the authority; and certainly there was no law of the Province to that effect.

I ought not to dismiss this subject without adding something to the brief allusion already made to the comparative mildness of the laws of Massachusetts in respect to capital punishment. The execution of Mark and Phillis took place just about the time that Blackstone was delivering his lectures at Oxford, which have since given him an enduring and world-wide fame as a commentator on the laws of England. This elegant defender and apologist for English laws and customs, in his commentaries, admits, seemingly with reluctance and regret, that there then existed on the statute-books of England no less than one hundred and sixty capital offences. At that time the number of capital offences in Massachusetts was less than one-tenth this number, if we exclude those made so by the acts relating to military offenders in actual service, and felonies on the high seas, and a few others, which, like the latter, were created by including among capital crimes certain offences which, though theretofore exempt from the death penalty by special circumstances and technical rules, had always been capitally punished when committed under other and not less justifiable circumstances.

Said Isaac Backus, whom I find to be a very trustworthy authority, in a letter to this Society, under date of Feb. 20, 1794, "There has not been any person hanged in Plymouth County for above these sixty years past."[26] More than a century earlier, John Dunton mentions a sermon of Mather's, preached at the execution of "Morgan, the only person executed in that country [Massachusetts] for near seven years."[27] He must, however, I think, have forgotten the case of Maria, the negro woman.

[Footnote 26: 1 Mass. Hist. Coll., vol. iii. p. 152.]

[Footnote 27: _Ibid._, 2d series, vol. ii. p. 102.]

Again, when the English riot act (1 Geo. I. stat. 2, ch. 5) was substantially adopted by the Province in 1751, the legislature studiously avoided the harshness of the former act by substituting forfeiture of lands and chattels, and whipping and imprisonment, for the death penalty.[28]

[Footnote 28: Compare provincial statute 1750-51, ch. 17 (Prov. Laws, vol. iii. p. 540), with the act of parliament referred to.]

In 1761 Governor Bernard vainly labored with his utmost zeal to secure the passage of an act or acts making it felony, without benefit of clergy, to forge public and private securities or vouchers for money, or to coin or counterfeit the current money of the Province. He sent a special message upon the subject to the Assembly, in which he stated:--

"In regard to the popular prejudices against capital
punishments which have hitherto prevailed in this country, I
shall only say that at present they are very ill-timed.
Whilst the people of this country lived from hand to mouth,
and had very little wealth but what was confined among
themselves, a simple system of laws might be proper, and
capital punishments might in a great measure be avoided; but
when by the acquisition, diffusion, and general intercourse
of wealth, the temptations to fraud are abundantly
increased, the terrors of it must be also proportionably
enlarged; otherwise if, through a false tenderness for
wicked men, the laws should not be sufficient to protect the
property of the honest and industrious, the rights of the
latter are given up to the former, and the undue mercy shown
to the one becomes a real injury to the other. To instance
this, I need only say that I have no doubt but that if these
crimes had been capital some years ago, and usually punished
as such, they would not have been committed at all at the
present time."

The Governor's opinion, however, was not borne out by the experience of the British government in its dealings with crime. There, it was made a capital felony to steal in a dwelling-house to the amount of 40_s._, or, privately, in a shop, goods to the value of 5_s._, or to counterfeit stamps that were used for the sale of perfumery, or such as were used for the certificates of hair-powder; and yet, notwithstanding this severity, all who considered the subject thoughtfully found that the increase of capital crimes more than kept pace with the increase of laws creating them; and this became so alarmingly evident that at length the conservative opposition to reform was overborne, and Sir Samuel Romilly and his coadjutors began those changes which have continued in the same direction to the present day. Before the reform was established, however, executions became so frequent that it was not uncommon for citizens to avoid certain parts of London and its environs on account of the intolerable odor, there, of decaying human bodies, hung in chains by the highways and before the doors of citizens.

Still the judges rode their circuits, leaving briefly minuted "calendars" in the hands of the executioners, who erected close behind them the gallows and the gibbet as monuments of their dispensation of "justice." Barristers bandied repartees and cracked jokes over good dinners, and serjeants hobnobbed with their brethren of the bench and of the coif, apparently unconcerned at the responsible part they were enacting in this awful drama; while the poor rabble put on their best attire on the days of execution, and liberally patronized the venders of cakes and ale who, near the gallows, erected booths as on other gala days,--many of the spectators, no doubt, thinking that it would not be so bad a thing, after all, if it came their turn next to better their desperate condition by swinging on the newly contrived gallows, on which ten criminals could be hanged together.[29]

[Footnote 29: See a picture of the new gallows, in the illustrated "Newgate Calendar."]

Alas! well may we ask with astonishment if it is possible that such a state of society really existed in the England of Hannah More, of Sir William Jones and Edmund Burke,--the land throughout which the Wesleys were preaching and singing to eager multitudes of the free grace and abounding mercy of God; where the pious Cowper was pleading for the relief of "insolvent innocence," and Clarkson and Wilberforce and Granville Sharp were rousing the public mind to the evils of slavery in distant colonies!

The case of petit treason which we have been considering occurred nine years before Beccaria startled all Europe with "the code of humanity,"--his treatise on crimes and punishments; yet had he known of our experience in this Province, he could have pointed to Massachusetts as the strongest practical illustration of the truth of his theory, that it is not necessary to multiply extreme penalties in order to prevent crime, but that we are to look for the amelioration of manners and the diminution of public and private wrongs to the mental and moral education of the people rather than to the terrors of the law.

In 1777, when the Revolutionary War was beginning to assume its gravest aspect, and when the hopes of traitors were reviving, the barbarous incidents of the punishment for treason were abolished by the legislature of Massachusetts, and this crime was made punishable simply by hanging. Eight years later the distinction between petit treason and murder was abolished,--an improvement of the criminal code in which we were followed by Great Britain five years later still.[30]

[Footnote 30: The Massachusetts act is as follows:--

"Whereas it does not appear reasonable any longer to continue the distinction between the crimes of murder and petit treason:

"Be it enacted by the Senate and House of Representatives, in General Court assembled, and by the authority of the same, That from and after the passing of this act, in all cases wherein heretofore any person or persons would have been deemed or taken to have committed the crime of petit treason, such person or persons shall be deemed and taken to have committed the crime of murder only, and indicted and prosecuted to final judgment accordingly; and the same punishment only shall be inflicted as in the case of murder.--[This act passed _March 16, 1785_.]"]

So that it was possible that our good city of Boston might have been disgraced by one of these horrible executions as late as 1785, and that a delicate woman could, with all the solemnity of legal forms, have been publicly burned to death at Tyburn as late as 1790!

In point of fact such executions occurred in England long after the burning of Phillis. A memorable case is that of Anne Beddingfield, who was burned for petit treason at Rushmore, near Ipswich, in 1763.

In 1813 the last of the minor infamous punishments, such as whipping, branding, the stocks, the pillory, cutting off ears, slitting noses, boring tongues, &c., were abolished in this Commonwealth.

As for hanging in chains, I cannot find when the custom was discontinued in Massachusetts. I do not remember to have read of an instance of this kind since the adoption of the Constitution, though I have made no special search for such an instance. Some of my hearers may be able to refer me definitely to the time and reason of the change.

In England, by the stat. 25 Geo. II., ch. 35 (1752), which was three years before the execution at Cambridge, provision was made that hanging in chains should be included in the sentence to be pronounced by the court against all persons convicted of murder, and that the sentence should be executed on the next day but one after it was pronounced. This was changed by the stat. 9 Geo. IV., ch. 31, so as to give the court a discretion to order hanging in chains or dissection; and the next year this act was extended to Ireland. By the stat. 2 & 3 Wm. IV., ch. 75, the court was authorized to order the body to be hung in chains or buried; and, finally, by the stat. 4 & 5 of Wm. IV., ch. 26 (July 25, 1834), all laws requiring bodies to be hung in chains were repealed.

No such sudden punishment as that prescribed by the act of parliament of the 25 Geo. II., could be legally inflicted here,--at least during the colonial period; for the colonial ordinance of 1641 required that four days at least should intervene between judgment and execution.

The only barbarous treatment of the bodies of criminals authorized by law in Massachusetts since the adoption of the Constitution, that I am aware of, was prescribed by the act of 1784, to discourage the practice of duelling, which revived some of the provisions of a law of the Province, passed in 1728, denying duellists the right to be buried in a coffin, and requiring the coroner or executioner to see that their bodies be interred near the place of execution, or in the public highway, with a stake driven through them.[31]

[Footnote 31: Compare act of June 30, 1784, with Prov. Stat. 1728-29, ch. 15: Prov. Laws, vol. ii. p. 516.]

Now, happily, capital punishment is restricted in this Commonwealth and in England to two offences only; and while, here, even high treason is punishable simply by imprisonment, in England, strong efforts have been repeatedly made, and recently with a fair prospect of ultimate success, to induce parliament to imitate our example and take away the death penalty from this the highest crime known to the common law.