Part 4
[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.]