The Trial and Execution, for Petit Treason, of Mark and Phillis, Slaves of Capt. John Codman / Who Murdered Their Master at Charlestown, Mass., in 1755; for Which the Man Was Hanged and Gibbeted, and the Woman Was Burned to Death. Including, Also, Some Account of Other Punishments by Burning in Massachusetts

FOOTNOTES

[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by poison, was to be boiled to death, and the offence was, by the same act, declared high treason; but this act was repealed by 1 Edw.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.

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