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.