The Trial and Execution, for Petit Treason, of Mark and Phillis, Slaves of Capt. John Codman Part 7

To appear before our Justices of our Superiour Court of Judicature Court of a.s.size & 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 Middles.e.x--

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 Ma.s.sACHUSETTS BAY } Britanniae Franciae Hiberniae vicesimonono._ MIDDLEs.e.x ss. }

At his Majestys Superiour Court of Judicature Court of a.s.size and General Goal Delivery began and held at Cambridge within and for the County of Middles.e.x on the first Tuesday of August Annoque Domini 1755--

By the Hon.o.ble. Stephen Sewall Esqr: Chief Justice Benjamin Lynde[4] } John Cus.h.i.+ng & } 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 G.o.d 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 G.o.d 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 p.r.o.nounced 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 G.o.d 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 G.o.d of Ma.s.sACHUSETTS BAY } Great Britain France and Ireland King MIDDLEs.e.x ss. } Defender of the Faith &Ca_

SEAL. To Richard Foster Esqr. Sheriff of our County of Middles.e.x in Said Province

Greeting

Whereas at our Superiour Court of Judicature Court of a.s.size and General Goal Delivery begun and held at Cambridge within and for the County of Middles.e.x on the first Tuesday of August last the Grand Jurors for us for the Body of our said County of Middles.e.x did on their Oath Present That Phillis a Negro woman of Charlestown in the County of Middles.e.x Spinster Servant of John Codman late of Charlestown aforesaid Gentleman, not having the fear of G.o.d 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 a.r.s.enick 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 s.p.a.ce 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 G.o.d 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 Middles.e.x 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 Middles.e.x 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_

MIDDLEs.e.x. 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 ill.u.s.trated 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. Ma.s.s. 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 pet.i.t treason:--

By the statute 25 Edw. III., this crime, which had had a wider application, was restricted to three cla.s.ses 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 s.e.x, 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 circ.u.mstance, it did not alter the punishment of the princ.i.p.al 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 princ.i.p.al 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 circ.u.mstances, except decapitation, were, as I have already said, usually omitted.

All male persons convicted whether of high treason or of pet.i.t 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 pet.i.t 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 subst.i.tuted, 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 Inst.i.tutes,--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 pet.i.t treason; as, indeed, do most, if not all, succeeding writers. They follow c.o.ke, 3 Inst. 211; but neither the statutes referred to, nor the case cited from 12 a.s.s. 30, by the latter, support his statement. The report runs thus: "Alice _de W, qui fuit de l'age de xiij ans, fuit a.r.s.e 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 c.o.ke, _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 Ma.s.s. 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 princ.i.p.al 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 circ.u.mstance that she was not included in the indictment.

[Footnote 12: See Hutchinson's Hist. Ma.s.s. 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 cla.s.s 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 pa.s.sed 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]