The Trial and Execution, for Petit Treason, of Mark and Phillis, Slaves of Capt. John Codman

[Record of the Case.]

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 Lynde4 }

John Cushing &} Esquires Justices

Chambers Russell }

[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 eighth5 day of September next between the hours of one and five of the Clock in the Afternoon.

[Writ of execution, or death-warrant.]

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

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 —

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

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

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.

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.

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.

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.

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

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.

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

"Marja17 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 Gouñor. 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."

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

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 Capital.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

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 talionis19 in this particular instance as a necessary terror to evil-doers.

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

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

"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

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

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: —

"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 Leifteñat Wm Clarks house in North Hampton. by taking Jack negroJndicted & sentenca 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