The Trial and Execution, for Petit Treason, of Mark and Phillis, Slaves of Capt. John Codman
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
– 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
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.
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
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 40s., or, privately, in a shop, goods to the value of 5s., 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
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
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
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.
1
Mark signed his deposition here, and the entry, "continued," was made at the end of the sheet; the next sheet beginning, "Mark's Examination, continued."
2
Sic.
3
This is assumed to be the case, since both these clerks officially signed papers in this very case, though, from the loose custom which gradually obtained with the clerks of our highest judicial court, of not recording their appointments, it is impossible to verify this statement by the record. Samuel Tyley, Jr., and Benjamin Rolfe were sworn in as joint clerks of this court, Feb. 26, 1718, and Samuel Winthrop was clerk as early as June, 1745, and Nathaniel Hatch as early as September, 1752.
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.
5
An error. It should have been "eighteenth."
6
Comm. book iv. ch. 32, p. 403.
7
Hist. Mass. Bay, vol. iii. p. 287, n.
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.
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, § 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.
10
Page 264.
11
2 Mass. Hist. Coll., vol. ii. p. 166, and note.
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 £10 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.
13
Hist. Coll. Essex Inst., vol. xviii. p. 88, n.
14
Letter of Colonel Revere to Cor. Sec. of Mass. Hist. Soc., Jan. 1, 1798: 1 Mass. Hist. Coll., vol. v. p. 107.
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.
16
Boston, Sept. 6, 1681.
17
I have followed Secretary Rawson in his peculiar use of the letter j. See many similar instances in the Mass. Colony Records.
18
Mass. Colony Laws, ed. 1672, p. 52.
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.
20
Records of the Court of Assistants, 1674, p. 14.
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†) with 2 Ld. Raym., 978, 982.
22
Record of the Court of Assistants, ubi supra, pp. 138, 139.
23
Ibid.
24
Deut. xxi. 22, 23.
25
The ordinary punishment for all capital felonies during the colonial régime 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.
26
1 Mass. Hist. Coll., vol. iii. p. 152.
27
Ibid., 2d series, vol. ii. p. 102.
28
Compare provincial statute 1750-51, ch. 17 (Prov. Laws, vol. iii. p. 540), with the act of parliament referred to.
29
See a picture of the new gallows, in the illustrated "Newgate Calendar."
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.]"
31
Compare act of June 30, 1784, with Prov. Stat. 1728-29, ch. 15: Prov. Laws, vol. ii. p. 516.