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.]