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[Transcriber's Note: This e-book contains extensive passages from 18th
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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.


BY

ABNER CHENEY GOODELL, JR.


CAMBRIDGE:
JOHN WILSON AND SON.
_University Press._
1883.

[200 copies printed.]




THE TRIAL AND EXECUTION

OF

MARK AND PHILLIS,

IN 1755.


     [The following pages are, with slight changes, a reprint
     from the Proceedings of the Massachusetts Historical
     Society, of a paper read before that Society, March 8, 1883,
     in answer to a question propounded at a previous meeting,
     relative to the authenticity of the tradition that a woman
     was burned to death in Massachusetts in the year 1755. As
     this case is the only known instance of the infliction of
     the common-law penalty for petit treason, in New England,
     and is not known to have been elsewhere reported, the
     printers have, at the author's request, struck off, in
     pamphlet form, a limited number of impressions for the use
     of persons interested in the history of our criminal
     jurisprudence, who may not have convenient access to the
     serial from which it is taken, or who may desire to preserve
     it separately.]

It is not surprising that the execution of a woman, by burning, so
lately as when Shirley was governor,--a period when the province had
greatly advanced in culture and refinement,--should seem to any one
incredible. Indeed, even so critical and thorough a student of our
provincial history as our late distinguished associate, Dr. Palfrey,
once wrote to me inquiring if the rumor of such a proceeding had any
foundation in fact, and if so, whether the execution took place
according to law, or by the impulse of an infuriated mob. It gave me
great satisfaction to be able to settle his doubts on this subject by
referring him to the records of the Superior Court of Judicature,
where the judgment, from which I shall presently read to you, and a
copy of which I sent to him, appears at length.

The subject is important at this day only as serving to define the
nature of the "cruel and unusual punishments" prohibited by the
thirty-first article of the Declaration of Rights, in our state
Constitution, since this mode of punishment, having continued after
the adoption of the Constitution, cannot have been considered by the
framers of that instrument either as "cruel" or "unusual" in the sense
in which they used these words.

The particulars of the crime for which the malefactors, Mark and
Phillis, were executed are briefly as follows: Captain John Codman, a
thrifty saddler, sea-captain, and merchant, of Charlestown, was the
owner of several slaves whom he employed either as mechanics, common
laborers, or house servants. Three of the most trusted of these, Mark,
Phillis, and Phebe,--particularly Mark,--found the rigid discipline of
their master unendurable, and, after setting fire to his workshop some
six years before, hoping by the destruction of this building to so
embarrass him that he would be obliged to sell them, they, in the year
1755, conspired to gain their end by poisoning him to death.

In this confederacy some five or six <DW64>s belonging to other owners
were more or less directly implicated. Mark, the leader, was able to
read, and signed his examination, hereafter referred to, in a bold,
legible hand. He professed to have read the Bible through, in order to
find if, in any way, his master could be killed without inducing
guilt, and had come to the conclusion that according to Scripture no
sin would be committed if the act could be accomplished without
bloodshed. It seems, moreover, to have been commonly believed by the
<DW64>s that a Mr. Salmon had been poisoned to death by one of his
slaves, without discovery of the crime. So, application was made by
Mark, first to Kerr, the servant of Dr. John Gibbons, and then to
Robin, the servant of Dr. Wm. Clarke, at the North End of Boston, for
poison from their masters' apothecary stores, which was to be
administered by the two women.

Essex, the servant of Thomas Powers, had also furnished Mark with a
quantity of "black lead" for the same purpose. This was,
unquestionably, not the harmless plumbago to which that name is now
usually given, but galena, or _plumbum nigrum_, a native sulphuret of
lead, probably used for a glaze by the potters of Charlestown.

Kerr declined to have any hand in the business; but Robin twice
obtained and delivered to Mark a quantity of arsenic, of which the
women, Phebe and Phillis, made a solution which they kept secreted in
a vial, and from time to time mixed with the water-gruel and sago
which they sometimes gave directly to their victim to eat, and at
other times prepared to be innocently administered to him by one of
his daughters. They also mixed with his food some of the "black lead,"
which Phillis seems to have thought was the efficient poison, though
it appeared from the testimony that he was killed by the arsenic.

The crime was promptly traced home to the conspirators; and on the
second day of July, the day after Captain Codman's death, a coroner's
jury found that he died from poison feloniously procured and
administered by Mark. Ten days later, Quaco,--the nominal husband of
Phebe, and one of the <DW64>s implicated,--who was the servant of Mr.
James Dalton, of Boston, was examined before William Stoddard, a
justice of the peace, and on the same day Robin was arrested and
committed to jail. The examination of Quaco was followed by the
examination of Mark, and of Phillis, later in the month. These last
were taken before the Attorney-General and Mr. Thaddeus Mason.

At the term of the "Superiour Court of Judicature, Court of Assize,
and General Goal Delivery," held at Cambridge on the second Tuesday of
August following, the grand jury found a true bill for petit treason
against Phillis, and against Mark and Robin as accessories before the
fact. As this is the only indictment for this offence known to have
been found in Massachusetts, and was drawn by that eminent lawyer,
Edmund Trowbridge, then Attorney-General, it is worthy of being
preserved in print, in connection with the coroner's verdict and the
examinations of the suspected parties, which are as follows:--


[_Coroner's Inquest._]

[Two-penny
stamp.]     MIDDLESEX ss.

An Inquisition Indented, Taken at Charlestown Within the County of
Middlesex Aforesaid the Second day of July in the Twenty ninth year of
the Reign of our Lord George the Second by the Grace of God, of Great
Britain France and Ireland, King Defender of the Faith &c., before
John Remington Gentleman one of the Coroners of our said Lord the
King, Within the County of Middlesex Aforesaid; upon view of the Body
of John Codman of Charlestown Aforesaid Gentleman then and there Being
dead by the oaths of Josiah Whitemore, Samuel Larkin, Samuel Larkin
Junr. Richard Deavens, William Thompson, Nathaniel Brown, Samuel
Kettle, John Larkin, Thomas Larkin, David Cheever, Barnabas Davis,
Edward Goodwin, Benjamin Brazier, Samuel Sprague, Richard Phillips,
Samuel Hendley and Michael Brigden Good and Lawfull men of Charlestown
Aforesaid Within the County Aforesaid; Who being Charg'd and Sworn to
Inquire for our said Lord the King, When, and by What means, and how
the Said John Codman Came to his Death--upon their Oaths do Say that
the said John Codman Came to his death By Poison Procured by his
<DW64> man servant Mark Which he took and Languishd untill the first of
July Current and then died and so the Jurors Aforesaid upon their
oaths do Say, that Aforesaid Mark in manner and Form Aforesaid, the
Aforesaid John Codman then and there feloniously did Poison against
the peace of our Soverign Lord the King his Crown and Dignity--

In Witness, Whereof, as Well I the Coroner Aforesaid, as the Jurors
Aforesaid, to this Inquisition have Interchangeably put our hands and
Seals, the day And year Abovesaid.

                            JOHN REMINGTON _Coroner_ [Seal.]
RICHD PHILLIPS     [Seal.]  JOSIAH WHITTEMORE        [Seal.]
SAMLL KETTELL      [Seal.]  SAML HENDLY              [Seal.]
JOHN LARKIN        [Seal.]  MICHLL BRIGDEN           [Seal.]
SAMUEL LARKIN JNR. [Seal.]  NATHLL BROWN             [Seal.]
WILLIAM THOMPSON   [Seal.]  DAVID CHEEVER            [Seal.]
THOMAS LARKIN      [Seal.]  SAMLL LARKIN             [Seal.]
RICHARD DEVENS     [Seal.]  BENJAMIN BRAZIER         [Seal.]
                            BARNABAS DAVIS           [Seal.]
                            SAMUELL SPRAGUE          [Seal.]
                            EDWD. GOODWIN            [Seal.]


[_Examination of Quaco._]

On the 12th July 1755, was Examined Quacoe a <DW64> man belonging to
Mr James Dalton of Boston Victualler He sd Quacoe says that some
time the last winter one Kerr a <DW64> man belonging to Doctr.
Jno Gibbons came to the sd Quacoe & told him that Mark belongg.
to Mr Codman had Been wth. him to get some Poyson and the sd. Quaco
says that Ker told him that Mark asked the sd. Kerr whither Phoebe had
been wth. him for said Poyson. The said Quacoe also says that he Spoke
to Phoebe Mr Codman's <DW64> woman whom he called his Wife & told her
not to be Concerned with Mark for that she would be Brought into
Trouble by him, for that Mark had been wth. Kerr Gibbons to get
Poyson, & had askt sd Kerr whither Phoebe had not been wth him for sd
Poyson. The sd Quacoe also says that the above discourse wth Phoebe
was when they were going to Bed the Saturday night after the discourse
had wth. Kerr Gibbons. He also says that he charged her not to be
concerned wth. Mark about Poyson on any accot. whatever.

The above Examination Taken on the 12th. July 1755 at Boston

[Symbol: Per] WM STODDARD _J Pacis_


[_Mittimus against Robin._]

SUFFOLK ss:

To The Keeper of His Majestys Goal in Boston and to the Constables of
Boston Greeting--

[Sidenote: L.S.]

I herewith Comit to you Mr. Constable Pattin the Body of Robin a
<DW64> man belonging to Dr. William Clarke of the North End of
Boston, who is this day Charged wth being Concerned in the
Poysoning of the late Mr. John Codman of Charles Town Deceased.
Take Care of him and deliver him to The Keeper of His Majestys Goal in
Boston; and you the sd Keeper are hereby Commanded to Receive the
Body of the Said Robin and him Safely Keep untill he shall be
discharged by Due Course of Law,

Given under my hand and Seal at Boston the Twelfth day of July anno
Domini 1755 and in the Twenty ninth Year of the Kings Reign.

WM. STODDARD, _Just: Pacis_.


[_Examination of Phillis._]

MIDDX ss:

The Examination of Phillis a <DW64> Servant of John Codman late of
Charlstown deceased taken by Edmund Trowbridge and Thaddeus Mason
Esqrs at Cambridge in the County of Middlesex the 26th. Day of
July Anno Domini 1755. And ye 2d of Augt. following--

_Questn._ Was Mr. John Codman late of Charlstown de[=c]d, your
Master?

_Answr._ Yes he was.

_Quest._ How long was you his servant?

_Answr._ He my said Master bought me when I was a little girl and I
continued his servant untill his Death.

_Questn._ Do you know of what sickness your said master died?

_Answer._ I suppose he was poisoned.

_Quest._ Do you know he was poisoned?

_Answr._ I do know he was poisoned.

_Quest._ What was he poisoned with?

_Answr._--It was with that black lead.

_Quest._ what black Lead is it you mean?

_Answr._ The Potter's Lead.

_Quest._ How do you know your sd. master was poisoned with that
Lead?

_Answr._ Mark got some of the said Potter's Lead from Essex Powers
and my young mistress Molly found some of the same Lead in the
Porringer that my Master's Sagoe was in, he complain'd it was gritty;
and that made Miss Molly look into the Porringer, and finding the Lead
there, she ask'd me what it was, I told her I did not know.--I
cleaned the Skillet the Sagoe was boiled in and found some of the same
stuff in the bottom of the skillet that was in the bottom of the
Porringer. And presently after Mark was carried to Goal, Tom brought a
Paper of the Potter's Lead out of the Blacksmith's Shop, which he said
he found there; and I saw it and am sure it was the same with that
which Was in the bottom of the Porringer and the Skillet.

_Quest._ Do you know that any other Poison besides the Potter's Lead
was given to your sd master?

_Answr._ Yes.

_Quest._ What was it?

_Answr._ It was Water which was poured out of a Vial.

_Quest._ How do you know that, that Water was Poison?

_Answr._ There was a White Powder in the Vial, which Sunk to the
Bottom of it.--

_Quest._ Do you know who put the Powder into the Vial?

_Answr._ I put the first Powder in.

_Quest._ Where did you get that Powder?

_Answr._ Phebe gave it to me up in the Garret, the Sabbath Day
morning before the last Sacrament before my master dyed, and Phoebe
at the same time told me Mark gave it to her.

_Quest._ What was the Powder in when Phoebe gave it you?

_Answer._ It was in a White Paper, folded up Square, both ends being
turn'd up, & it was tyed with some Twine.

_Quest._ How much Powder was there in the Paper?

_Answr._ There was a good deal of it I believe near an ounce.

_Quest._ Did you put all that Powder into the Vial?

_Answr._ No, I put in but a little of it, only so much as lay on
the Point of a narrow Piece of flat Iron, with which I put it in,
which Iron Mark made & gave it to me to give to Phebe, Mark gave me
the sd Iron the Saturday before the Sabbath aforesd. I ask'd him
what it was for, he would not tell me; he said Robbin gave him one,
and he had lost it; and that he himself went into the shop and made
this. I gave the sd Iron to Phoebe that same afternoon, in the
Kitchen; and the next morning she gave it to me in the Garret, and
Quaco was there with her; she whisper'd to me and told me to take the
Paper of Powder which was in the hollow over the Window, and the flat
Iron which was with it and put some of it into the Vial with the Iron
which I did; and she bid me put some water into it, but I did not; but
she afterwards put some in herself, as she told me, and she put it
into the Closet in the Kitchen in a Corner behind a black Jug; and the
same Vial was kept there untill my master dyed.

_Quest._ Had your Master any of that Water which was put into the said
Vial given to him?

_Answr._ Yes he had.

_Quest._ How was it given to him?

_Answr._ It was poured into his barly Drink and into his Infusion,
and into his Chocalate, and into his Watergruel.

_Quest._ Who poured the Water out of the sd Vial into the
Chocalate?

_Answr._ Phoebe did, and Master afterwards eat it.

_Quest._ Who pour'd it into his barly Drink?

_Answr._ I did it myself; I pour'd a drop out of the Vial into the
barly Drink, & I felt ugly, and pour'd the Water out of the mug again
off from the Barly, and put clean Water into the mug again & cover'd
it over that it might boil quick.

_Quest._ Who pour'd the Water out of the Vial into the Infusion?

_Answr._ Phoebe did.

_Quest._ How do you know it?

_Answr._ I came into the Kitchen and saw her do it.

_Quest._ Did your master drink the Infusion after that water was so
pour'd in?

_Answr._ He drank one Tea Cup full of it.

_Quest._ How do you know that Phoebe poured any of the poisoned
Water out of the Vial into your Master's Chocalate?

_Answr._ She told me she had done it.

_Quest._ When did she tell you so?

_Answr._ That Same Day.

_Quest._ Was it before or after your Master eat that Chocalate that
the poison'd Water was pour'd into, that She told you so?

_Answr._ Before he eat it.

_Quest._ Did you see him eat that Chocalate?

_Answr._ Yes, I did, he eat it in the Kitchen on a little round
Table.

_Quest._ Who put the Second Powder into the Vial?

_Answr._ Phoebe put it in; I left Part of the Powder she gave me
in the Paper, and she afterwards put that into the Vial as she told
me. as I was in the cellar drawing some Cyder, I heard Phoebe tell
Mark that the Powder was all out, and all used up;

_Quest._ When was it that you heard Phoebe tell Mark so?

_Answr._ The Wednesday before my master dyed.

_Quest._ Do you know of any more Powder being got to give to your
master?

_Answer._ Yes, but master never took any of it.

_Quest._ Who got this last Powder?

_Answr._ Mark got it.

_Quest._ What did he do with it?

_Answr._ He gave it to me; in our little House.

_Quest._ What Sort of Powder was it that Mark gave You?

_Answr._ I[t?] was white the same as the first.

_Quest._ What was it in?

_Answr._ In a Peice of Paper; he had more of that Powder than he
gave me, it was in a Paper folded up in a long Square, he tore off
Part of that Paper, and put Some of the Powder into it, and gave it to
me and kept the rest himself. and at the same time that he gave it to
me he told me that Robbin said we were damn'd Fools we had not given
Master that first Powder at two Doses, for it wou'd have killed him,
and no Body would have known who hurt him, for it was enough to kill
the strongest man living; upon which I ask'd Mark how he knew, it
would not have been found out, he said that Mr. Salmon's <DW64>s
poison'd him, and were never found out, but had got good masters, & so
might we.

_Quest._ What did you do with that Powder which Mark gave you?

_Answr._ I put it into the Vial, & set it in the Same Place it was
in before, there was some of the first Powder & Water remaining in the
Vial when I put this last in.

_Quest._ Do you know that any of the Water that was in the Vial after
you put this last Powder in was given to your Master?

_Answr._ No, he never had a drop of it. The next Day after Master
died Mark came into the Closet where I was eating my Dinner and ask'd
me for that Bottle. I ask'd him what he wanted it for, and he would
not tell me, but insisted upon having it, upon which I told him that
it was there behind the Jugg, and he took it and went directly down to
the Shop in the yard, and I never saw it afterwards 'till Justice
Mason shew it to me, on the Fast Day night.

_Quest._ Do you know where Mark got that Powder which he gave to you?

_Answr._ He had it of Robbin, Doctr Clark's <DW64>; that liv'd
with Mr. Vassall.

_Quest._ How do you know that Mark had that Powder of Robbin?

_Answr._ The Thursday night before my master died Mark told me he
was going over to Boston to Robbin to get some more Powder for he
sd: Phoebe told him yt the other was all out; and Mark went
over to Boston, and return'd again about nine o'Clock; and I ask'd
Mark if he had got it, and he told me no, he had not, but Robbin was
to bring it over the next night; and between 8 & 9 o'Clock that next
night, a <DW64> Fellow came to me in our Yard & ask'd me for Mark, And
I ask'd him his name but he would not tell me, and I said to him,
Countryman, if you'l tell me your name I'll call Mark, for I know
where he is, but he would not, I then askt him if he was not Robbin
Vassall, (for I mistrusted it was he) and upon that he laughed and
said his name was not Robbin Vassall, but he came out of the Country
and wanted to see Mark very much about his Child; and upon my refusing
to tell him where Mark was the <DW64> went away down to the Ferry, and
I followed him at some distance & saw him go into the Ferry Boat, and
the Boat put off, with him in it. That same Fryday, in the afternoon,
Mark told me, if any <DW64> Fellow shou'd come; & say that he came out
of the Country to call him, I ask'd him what <DW64> it was that he
expected wou'd come; he told me it was Robbin, and that he was to say
that he came out of the Country to speak with Mark about his Child,
and bid me tell no Body about it.

_Quest._ Do you know Robbin Doctr. Clark's <DW64>?

_Answr._ I do, and have known him for many years.

_Quest._ How then happen'd it that you cou'd not certainly tell
whether the <DW64> aforesd. that askt for Mark was Robbin or not?

_Answr._ Because it was dark, So dark I cou'd not see his Face so
as certainly to know him, but I am fully satisfyed it was Robbin.

_Quest._ What Reason have you to be satisfyed it was Robbin?

_Answr._ That same night I told Mark that a <DW64> Fellow had been
there and ask'd for him & wanted him, he ask'd me why I did not call
him, I told him our Folks called me and I could not, Mark told me he
was very Sorry I did not, and asked me if he gave me any Thing, I told
him he did not, he said he was very sorry he did not; then I ask'd him
who it was, and he said it was Robbin, and then he told me that he
thought Robbin & he had been playing blind-mans Buff, for they had
been over the Ferry twice that night and mist one another; and that
Elijh Phipps & Timo Rand told him that a <DW64> Fellow had been over
the Ferry to speak with him about his Child. And then Mark told me he
would the next Night go over to Robbin and get some more of the same
Powder, and would bring it over on the Sabbath Day, & he went to
Boston on the Saturday night, but did not return till Monday morning,
when he brought it and gave it to me in the little House, as I told
you before.

_Quest._ Did you see Robbin at Charlstown in the Time of your master's
sickness or about the Time of his Death?

_Answr._ Yes, I saw him on ye Tuesday the Ship was launched,
when my master catch'd Mark buying Drink at Mrs Shearman's to treat
him with, & drove him away; and I saw him at Charlstown on the
Saturday after my Master was buried; but I did not speak with him at
either of those Times. The Tuesday he was before our Shop Door, in the
Street, with Mark and had a Bag upon his shoulder; and on the Saturday
in the afternoon I saw him going up the Street by our House, while
Phoebe and I were washing in the back yard; I told Phoebe there
was Robbin a going along this minit, and she said is he? and ask'd me
what Cloaths he had on; I told her he had a bluish Coat on lined with
a straw  or yellow lining and the Cuffs open & lined with the
said Yellow lining, and that he had a black wigg on; and I told
Phoebe I believed he was gone up to Mark to tell him not to own that
he had given any Thing to him, and Phoebe said she believed so to;
and I went into the street to the Pump with a Pail to get some Water,
designing to see whether he went that Way, and I saw him go right up
the main street, and I could see him as far up as Mr. Eleazer
Phillips's, and I did not see him afterwards. I never see him with a
Wigg on before, but as he went by us he look'd me full in the Face and
I knew it was Robbin. When I told Phoebe that Robbin was going by, I
thought she saw him, but she questioned whether it was he, and I told
her I was sure it was he, for I had known him ever since he was a boy,
and I told her I would lay a mug of Flip that it was he, but she wou'd
not; and then it was that I told her I believed he was gone up to Mark
&c.

_Quest._ Do you know what Powder that was which Mark & Phoebe gave
you, and you put into the Vial?

_Answr._ Mark told me it was Ratsbane, but I told Phoebe I
believed Mark lied & that it was only burnt allom, for I told her,
that upon taking Ratsbane they would directly swell, and Master did
not swell; and she said she believed so to.

_Quest._ How many Times was any of that Water, which was in the Vial
aforesd., put into your master's victuals?

_Answr._ Not above Seven Times.

_Quest._ When was the first Time?

_Answr._ The next Monday morning after Phoebe gave me the first
Powder. then it was put into his Chocalate, by Phoebe. The next was
also put in to his Chocalate by Phoebe on the next Wednesday
morning, and I thinking she put in more than she should, told her her
hand was heavy, and there was no more put in, that, I know of till the
next Fryday, when Phoebe put some into his Chocalate, and my Master
eat the Chocalate all the three times aforesaid in the Kitchen, and I
was there & saw him; The next was on the Saturday following, when I
put Some into his Watergruel, but I felt ugly and threw it away, and
made some fresh, and did not put any into that. The next was on the
afternoon of the same Saturday, I made him some more Watergruel &
pour'd some of the Water out of the Vial into it, and it turned
yellow, and Miss Betty, ask'd me what was the matter with the
Watergruel and I gave her no answer; but that was thrown away, and
more fresh made, and Miss Molly was going to put the same Plumbs in
again, and Phoebe told her not to do it, but she had better put in
some fresh Plumbs, and she did; and no Poison was put into that; It
was by Phoebe's advice that I put it into the first this afternoon.
And he had no more, that I know of 'till the next Monday night, when
Mark put some of the Potter's Lead into Masters Sagoe.

_Quest._ How do you know that Mark put any of the Potter's Lead into
the Sagoe?

_Answer._ When I went out of the Kitchen I left the Sagoe in the
little Iron Skillet on the Fire, and no body was in the Kitchen then,
but when I returned, Mark was Sitting on a Form in the Corner, and I
afterwards found Some of that Lead in the Skillet, and neither
Phoebe nor I had any Such Lead.

_Quest._ Do you know of any other Poison prepar'd for, or given to
your Master?

_Answr._ No, I do not.

_Quest._ Who was it that first contrived the poisoning your Master
Codman?

_Answr._ It was Mark who first contrived it, He told Phoebe and I
that he had read the Bible through, and that it was no Sin to kill him
if they did not lay violent Hands on him So as to shed Blood, by
sticking or stabbing or cutting his Throat.

_Quest._ When was it that Mark first proposed the poisoning his
Master?

_Answr._ Some time last Winter; he proposed it to Phoebe and I,
but we would not agree to it, and told him No Such Thing should be
done in the House; This before my Master brought him home from Boston.

_Quest._ Did he ever afterwards propose the poisoning his sd
Master?

_Answr._ Yes he did, a Week or a Fortnight after my Master brought
him home from Boston, he proposed it to me first, and I would not
agree to it, and then he proposed it to Phoebe.

_Quet._ What Reason did Mark give for poisoning his Master?

_Answ._ He said he was uneasy and wanted to have another Master, and
he was concerned for Phoebe and I too.

_Quest._ Do you know how your Master's Work house that was burnt down
came on Fire?

_Answr._ Yes I do.

_Quest._ How came it on fire?

_Answr._ I set it on fire, but it was thro' Mark's means, he gave
me no rest 'till I did it.

_Quest._ How did you Set your Master's Work House on fire?

_Answr._ I threw a Coal of Fire into some Shavings between the
Blacksmith's Shop & the Work House, and I went away & did not see it
kindle.

_Quest._ Who put the Shavings there?

_Answr._ Mark did.

_Quest._ Was any Body concern'd in the burning the Work house
besides Mark and you?

_Answr._ Yes, Phoebe knew about it as well as I.

_Quest._ Where was Phoebe & Mark when you put the Coal of Fire into
the Shavings?

_Answr._ The were up Garret in bed.

_Quest._ Who first proposed the Setting the Workhouse on fire? and
what reason was given for doing it?

_Answr._ Mark first proposed it, to Phoebe and I; and the Reason
he gave us was that he wanted to get to Boston, and if all was burnt
down, he did not know what Master could do without selling us.

_Quest._ Why did you, when Phoebe pour'd Some of the Water out of
the Vial into the Chocalate tell her, "her hand was heavy?"

_Answr._ I thought she pour'd in too much, more than she should I
felt ugly and I wan't willing she shou'd put in so much and that he
should be kill'd so quick. Mark's orders were to give it in two Doses,
that was the Directions Robbin gave to Mark, as Mark told me, and Mark
Said Robbin told him there was no more taste in it than in Cold Water.

_Quest._ Why did you not tell your Master or some of the Family that
Phoebe had poisoned the Chocalate, and thereby prevent your Master's
eating it?

_Answr._ I do not know why I did not tell.

The mark of X Phillis.


[_Examination of Mark._]

MIDDLESEX ss:

The Examination of Mark a <DW64> Servant of John Codman late of
Charlstown deceased taken by Edmund Trowbridge & Thaddeus Mason
Esqrs. at Charlstown in the County of Middlesex the ---- Day of
July Anno Dom: 1755.

_Quest._ What is your name?

_Answr._ Mark.

_Quest._ Are you a Servant or Freeman?

_Answr._ A Servant. Mr. John Codman decd: was my master.

_Quest._ How long was you his Servant?

_Answr._ For several Years before & untill his Death.

_Quest._ Do you know what occasion'd your sd. Master's Death?

_Answr._ He was poisoned.

_Q._ What was he poisoned with?

_A._ With Poison that came from the Doctor's.

_Q._ What Doctor?

_Answr._ Doctr. Clark that lives at the North End of Boston.

_Q._ What sort of Poison was that?

_A._ It was a White Powder put up in a Paper.

_Q._ How do you know that that Powder came from Doctr. Clark's?

_A._ Robbin the <DW64> Fellow that belongs to Doctr. Clark gave it
to me.

_Q._ When & where did Robbin give you that Powder?

_An._ A Week Day night, at his Master's Barn.

_Qu._ Was there any Person present with you when Robbin gave you that
Powder?

_An._ No. The first Time, the <DW64> man his fellow Servant called him
out, it was in the Evening near 9 o'Clock.

_Qu._ How many Times had you such Powder of Robbin?

_An._ Twice only.

_Qu._ When was the last Time you had any such Powder of him?

_An._ The Sabbath Day night before my sd. Master died, in the
Evening after Candle Light.

_Qu._ Where was it you had this last Powder of him, and what was it
in?

_An._ He gave it to me in the same Barn, it was done up in a long
square in two Papers, the outtermost Paper was brown and the inermost
Paper was White, as the other was.

_Qu._ What did Robbin give you these Powders for?

_An._ To kill three Pigs belonging to Quaco as Phoebe told me.

_Qu._ How long ago was it Since Robbin gave you the first of these
Powders?

_An._ I can't certainly tell.

_Qu._ Was it before Robbin & you were together at John Harris ye
Potters Work house?

_Ansr._ I think it was before.

_Qu._ How long before was it?

_Ansr._ About a Week before.

_Qu._ Did you pay Robbin any Thing for these Powders?

_An._ No. I did not.

_Q._ What did you do with them?

_Ans._ Phoebe had the first; and she sent Phillis for the second and
I gave it to her.

_Qu._ When & where did you give Phoebe the first Paper of that
Powder?

_An._ In our Garret; the same night I brought it over.

_Qu._ Was any Body there when you gave it to her?

_An._ No.

_Qu._ What did she do with it?

_An._ She took it & put it upon the Table.

_Qu._ Did you give her the whole of the Powder you had of Robbin the
first Time?

_An._ Yes. I gave her the Paper with all the Powder in it, as I
received it of Robbin.

_Qu._ Did you tell her what was in the Paper?

_An._ No. She knew what was in it; for she told me what to get.

_Qu._ What did she tell you to get?

_An._ Something to kill three Pigs.

_Qu._ Did Robbin give you any Directions how to use that Powder, and
tell you what Effect it would have?

_Ans._ He told me to put it into about 2 Quarts of Swill or Indian
meal, and it would make 'em swell up.

_Qu._ Did you tell her how she must use the Powder? or what Effect it
would have?

_Answr._ yes I told her as Robbin told me.

_Qu._ Do you know whether she used that Powder or any Part of it?

_Answr._ no otherwise than as Phoebe & Phillis told me Since my
master's Death.

_Qu._ Who did you give the Second Paper of Powder to?

_An._ To Phillis.

_Qu._ When & where did you give that Paper of Powder to Phillis?

_Ans._ In the little House; She came to empty a Pot over the Wharffe,
and I gave it to her, The Monday before my sd. Master died, after
Breakfast in the Forenoon.

_Qu:_ Did you then give her all the Powder you recd. of Robbin the
Second Time?

_Ans._ Yes. I took off the brown Paper and gave it to her in the white
Paper, that it was in, when Robbin gave it to me.

_Qu._ What did she do with it?

_Answr._ She caried it into the House to Phoebe as Phillis told
me, She came to me & told me Phoebe sent her for that Thing that She
sent me for, and thereupon I gave Phillis the Paper.

_Qu:_ How was your Master poisoned with these Powders?

_Answr._ Phoebe & Phillis told me that they used them for that
End.

_Qu:_ When did they tell you this?

_Answr._ The next Day after my master died.

_Q:_ Were they together when they told you So?

_Answr._ No, Phillis told me of it first, and said that Phoebe
used all that I brought first, that Way; and that the last was used so
too by her and Phoebe; and then I went to Phoebe and ask'd her
about it, and She denyed it at first but when I told her that Phillis
had told me all about it, then she owned it.

_Quest._ Had you no Reason before your sd. master dyed to think
that the Powders you had of Robbin were given to your master or that
he was poison'd therewith?

_Answr._ No other Reason than hearing Phoebe the Saturday night
before master died ask Phillis, if she had given him enough, to which
she replyed, yes. I have given him enough, and will stick as close to
him as his shirt to his back; but who she meant I did not then know,
nor untill after master died.

_Quest._ Was there no Discourse had between you Phoebe & Phillis
about getting more Poison, after you had the first, of Robbin?

_Answ._ The Fryday before my master died Phoebe told me that she had
lost that stuff that I had brought to her from Robbin, and desired me
to get her some more. I told her I wou'd when I went over to Boston;
this was in the Forenoon, when she was washing in the back yard.

_Quest._ Did you get her any more of Robbin?

_Ansr._ Yes, and that was it which I gave to Phillis

_Quest._ When did you go over to get the last Poison?

_Ans._ on the Saturday night before my master died; I went over after
Sunset; I went directly to Robbin; & told him I wanted some of the
same I had of him before for that was lost, Robbin was then at the
Corner of his master's House out in the street, he told me he could
not get any then, but if I wou'd come on the Sabbath Day night he
would let me have some, and I went to him on the Sabbath Day night
after Candle Light, and he then gave it to me.

_Quest._ Was there any Body with you on the Saturday night when you
ask'd for the Poison, or do you know whether any Person saw you &
Robbin together that Evening?

_Answr._ No, nobody was there, and I dont know that any Body saw us
together that Evening.

_Quest._ How long was you with Robbin at Mr. Harris's Work house?

_Answr._ I made no tarry there, but left him at the Pot house, and
he and the young man that was with him followed me and overtook me a
little below Mr. Waite's Slaughter house; And they went with me
into the Lane leading from the market Place to the long Wharffe near
Mrs. Shearman's, while I went into Mrs. Shearmans and got a mug
of Toddy, in the mug I brought from Mr. Harris's Work house, and I
carried it to them and they both drank with me.

_Quest._ Had you any Discourse with Robbin in private or between you
and him alone that Day?

_Ansr._ No, none at all.

_Quest._ Where did you drink the Toddy?

_Answr._ In the Lane aforesd.

_Quest._ Where did you all go after you drank the Toddy?

_Answr._ We all came away together & went thro' Mr. Sprague's
Yard & so thro' Mrs. Silence Harris's yard & Entry into the street.
and they went directly down to the Ferry and I went into my master's
Yard with the Pots I brought from the Potters Work house.

_Quest._ Did you then go with them to the Ferry or nearer to it than
your master's House?

_Answr._ No, I did not.

_Quest._ Did Robbin give you, or did you give Robbin any Thing between
the Time of your coming out of Mr. Harris's Entry and his going
over the Ferry?

_Answr._ No, I did not give him any Thing neither did he give me
any Thing.

_Quest._ After you had parted with him when you came thro' the Entry,
did you call him back?

_Answr._ No, I did not.

_Quest._ Did your master that Day forbid Mrs Shearman's letting you
have any more Drink?

_Answr._ Yes, my master told her not to sell any Drink to any of
his Servants.

_Quest._ Did Robbin know of it?

_Answr._ Not that I know of; he see master go into Mrs.
Shearman's Shop, and pass'd by Robbin in the Lane as Robbin told me.

_Quest._ Did you ever apply to any body else, besides Robbin for
Poison?

_Answr._ No, only to Carr, Doctr. Gibbon's <DW64> man, and then
Phoebe sent me for it. She had been with Carr before on the same
account, & he told her he cou'd not get her any then, as she told me;

_Quest._ Did you get any Poison of Carr?

_Ansr._ No, he told me he wou'd not let me have any, untill he had
seen Quaco, and did not know whether he shou'd then or not, and I
never went to him afterwards.

_Quest._ Did you never ask Doctr. Rand's Cato for any Poison?

_Answr._ No, I do not know that I ever did, in the World.

_Quest._ Had you and Phoebe any Conversation together about your
master in or near your Blacksmith's Shop or in the yard the Monday
before your master died?

_Answr._ I had not, that I know of.

_Quest._ Did you that Day before Tom or any other of your master's
Servants say that you knew that your master would dye or utter any
Words to that effect?

_Answr._ No, I did not. The Day before master dyed, Phoebe came
into the Shop to dress Tom's Eye & got to dancing & mocking master &
shaking herself & acting as master did in the Bed; And Tom said he did
not care, he hop'd he wou'd never get up again for his Eye's sake, and
Scipio was there at the same time and saw her.

_Quest._ Did you ever Say that your master had been offer'd L400 for
you but wou'd not take it, and now he shou'd not have a farthing or
Words to that effect?

_Answr._ No I never said any such Thing. MARK.[1]

[Footnote 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."]

_Quest._ Did you ever tell Phoebe or Phillis that the Week before
your master dyed, that you went over the Ferry to see Robbin to get
some more Poison, and that he came over the Ferry in another Boat and
so you mist each other and that he Robbin pretended to the Ferry-man
that he was a Country <DW64> and wanted to see you about your Child, or
Words to that Effect?

_Answr._ I never told them or either of them so.

_Quest._ How came that Viall buried near your Forge in the
Black-Smith's Shop, that you told Mr. Kettell of, and he found
there?

_Answr._ I buried it there.

_Quest._ When did you bury it there?

_Answr._ In the afternoon of that Day that master dyed.

_Quest._ Where did you get that Vial?

_Answr._ I took it from Phillis that same Afternoon.

_Quest._ Did any body see you take it from her?

_Answr._ No. When I took it from Phillis she own'd that Phoebe
had given the first Poison that I brought to master; and that she and
Phoebe had given him all the Rest saving what was then in the
Bottle. and thereupon I went to Phoebe and charged her with it, she
at first deny'd it, but at last own'd it it and begg'd me to say
nothing about it; I told her if I had known she wou'd have put it to
that use I would not have got it for her; then I call'd Pompey to go
down to the shop with me for I wanted to speak with him, intending to
shew him the Vial, and he came into the shop but before I had an
opportunity to speak to him Mr. Kettell took me.

_Quest._ Where was the Vial when you talked with Phoebe as
aforesd?

_Answr._ I had it in my Pocket, and told her so, then I went into
the shop and buried it, then I went into the House immediately to call
Pompey to shew it to him.

_Quest._ Why did you bury the Vial before you called Pompy? or shew it
to any body?

_Answr:_ I buried it because I did not want any body should see it
before I shewed it to him.

_Questn._ Have you lately had any Potters powder'd Lead by you or
in your Possession?

_Answr._ Only that I had from Essex Powars; which was as I suppose
ground to Powder.

_Quest._ When did you get that powder'd Lead of Essex?

_Ansr:_ I had it of him that Day I went there for six butter Pots,
which my master's son Isaac sent me for.

_Quest._ What did you get that Lead for?

_Answr._ To see if it would melt in our Fire. upon a Dispute
between Tom and I about it; Tom said it would melt, and I told him I
did not believe it would; I carried it home and laid it upon the Wall
Plate in the Blacksmith's shop, and I never moved it afterwards or
thought any Thing about it, 'till it was show'd to me by the Justice.

_Quet._ Do you know that any Part of that Lead you had of Essex or any
Lead like unto it was given to your master or put into his Victuals or
Drink?

_Answr._ I do not.

_Quest._ Do you know of any Proposal made of poisoning your master?

_Answ._ No, I do not, nor ever heard any such Thing proposed by any
Body.

_Quest._ Do you know of any Cushoe nuts being procured for that
Purpose?

_Answr._ No; I have not seen a Cushoe nut since I have been in this
Country.

_Quest._ Do you know of any Copperas or Green stuff being provided for
that Purpose?

_Answr._ No I do not.

_Quest._ What Time on the Saturday before your master dyed was it that
you heard Phoebe ask Phillis, if she had given him enough, and
Phillis said she had, and would stick as close to him as his Shirt to
his Back?

_Answr._ In the afternoon about Dark; and before I went to Boston.

_Quest._ How came you, after you had heard this Talk between Phoebe
and Phillis, to get her sd. Phoebe more Poison?

_Answr._ I did not know what she meant by their Talk, nor who they
meant, by him.

_Quest._ Did you tell Carr that Phoebe sent you for that Poison you
applyed to him for?

_Answr._ She did not tell me it was Poison, but told me to ask Carr
for that Thing he had promised her; he said he knew what it was and
would not send it, 'till he had talked to Quaco, and did not know that
he should send it afterwards; and I said no more to Carr about it.

_Quest._ Did you ever ask Carr at any other Time for Poison?

_Ansr._ No.

_Quest._ Did you never ask him for something to Poison or kill a Dog?

_Answr._ No, not that I know of.

_Quest._ Was you ever bit by a Dog?

_Answr._ No. I never was.

_Quest._ Do you know any Thing more of your master's being poisoned
than you have before related?

_Ansr._ No, I do not.

MARK.


[_Bill of Indictment._]

[Sidenote: MIDDLESEX ss.]

At His Majesties Superiour Court of Judicature Court of
Assize and General Goal Delivery held at Cambridge in and for the
County of Middlesex on the first Tuesday of August in the Twenty ninth
Year of the Reign of George the Second by the Grace of God of Great
Britain France & Ireland King Defender of the Faith &c.

The Jurors for the said Lord the King upon their Oath present That
Phillis a <DW64> 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 thirtieth Day of June last at Charlestown
aforesaid in the Dwelling house of the said John there did of her
Malice forethought willfully feloniously 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 feloniously
willfully and 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 & 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 as[2] aforesaid and Suspecting no Evil did then and there
eat the same Watergruel so poisoned as aforesaid----And that the said
Phillis then and there was feloniously and traiterously present with
the said Elizabeth & John knowing of and consenting unto the said
Elizabeth's giving him the said John the Watergruel aforesaid so
poisoned as aforesaid and his eating the same as aforesaid----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
and then at Charlestown aforesaid Died of the Poison aforesaid given
him as aforesaid----And So the Jurors aforesaid upon their Oath say
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 the Peace of the said Lord the King his Crown & Dignity.

[Footnote 2: _Sic._]

And the Jurors aforesaid upon their Oath further present That Mark a
<DW64> man of Charlestown aforesaid Labourer and Servant of the said
John Codman. And Robbin a <DW64> man of Boston in the County of Suffolk
Labourer & Servant of John Clark of Boston aforesaid Apothecary before
the said Treason and murder aforesaid committed by the said Phillis in
manner & form aforesaid did at Charlestown aforesaid on the twentieth
Day of June last of their malice forethought (the said Mark then being
Servant of the said John Codman) feloniously & traiterously advise &
incite procure & abet the said Phillis to do and commit the said
Treason & Murder aforesaid against the Peace of the said Lord the King
his Crown and Dignity.

EDM TROWBRIDGE _Attr [Symbol: Per] Dom Rege._

This is a True Bill.

CALEB DANA _foreman_.

       *       *       *       *       *

The case was tried, at the same term at which the parties were
indicted, before Stephen Sewall, chief justice, and Benjamin Lynde,
John Cushing, and Chambers Russell, associate justices,--all fairly
read in the law, and the Chief Justice eminent in his profession.
Samuel Winthrop and Nathaniel Hatch, jointly, were clerks of the
court.[3]

[Footnote 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.]

Mark and Phillis were convicted, and sentence of death was pronounced
upon them in strict conformity to the common law of England. On the
6th of September, a warrant for their execution was issued, under the
seal of the court, commanding Richard Foster, Sheriff of Middlesex, to
perform the last office of the law, on the 18th of the same month; and
upon this warrant the sheriff made return upon the day of the
execution.

The subpoenas to the witnesses against the accused, the caption and
conclusion of the record of the case, and the warrant for the
execution of the condemned are as follows:--

PROVINCE OF THE     } _George the Second by the Grace of God of Great
MASSACHUSETTS BAY,  }  Britain France & Ireland King Defender
ss.                 }  of ye Faith &c._

       To the Sheriff of our County of Middlesex his under
SEAL.  Sheriff or Deputy or to any Constable of the Town of
       Charlestown within Said County, Greeting--

We Command you That you Su[=m]on Wm. Brattle Esqr Docter Pinchin of
Boston Joseph Rand Junr. Hatter Bartholomew Powers Isaac Rand
Phisitian Wm. Kneland, Benjn. Codman Parnel Codman Elizh.
Codman Mary Codman Ann Codman Catherine Codman, Pompey Thomas Cuffee
and Scipeo <DW64> servants that were Jno. Codman Decd. James Kittle
Wm. Foster Phisitian Essex Servant to thomas powers Servt. of
Dr. Rand Dinah Servt. of Richd. Foster Esqr Ruth Adams

To appear Before our Justices of our Superiour Court of Judicature
Court of Assize and General Goal Delivery now held at Cambridge within
& for said County tomorrow at Eight of ye Clock before noon to give
Such Evidence in our Behalf (as you know) against Mark a <DW64> man &
Phillis a <DW64> woman both of Charlestown aforesaid--

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_

[_Endorsed Return._]

MIDDLESEX ss. August 7, 1755

We have somoned the persons within named to appear & Give Evidence at
the time & place within mentioned.

JAMES KETTELL, _Dept Sheriff_,
  & JOHN MILLER
    _Constabel_.


PROVINCE OF THE       } _George the Second by the Grace of God of
MASSACHUSETTS BAY ss  }  Great Britain France & Ireland King
                         Defender of the Faith &c._

       To the Sheriff of our County of Suffolk his under Sheriff
SEAL.  or Deputy or to any Constable of the Town of Boston in
       sd. County Greeting

We Command you that you Summon The Wife of Ichabod Jones Eliza.
Mercy Car, a <DW64> man servant of John Gibbins Apothecary Quaco the
servt. of ---- Dalton Quaco a <DW64> 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 <DW64> man & Phillis a <DW64> 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 <DW64> 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
<DW64>s, 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 <DW64> Man, and
     _Phillis_, a <DW64> 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] <DW64> 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 <DW64> 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 <DW64>s who were suspected of complicity with Maria were
ordered to be transported. The record is as follows:--

     [Sidenote: "Chessaleer <DW64>s Sentence"]

     Chessaleer <DW64> servant to Tho. Walker brickmaker now in
     Goale on suspition of Joyning wth Marja <DW64> 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 <DW64> sentence]

     The like Judgment & sentenc was declard against James
     Pemberton's <DW64> in all respects as agt Chessaleer
     <DW64> &c.[22]

[Footnote 22: Record of the Court of Assistants, _ubi supra_, pp. 138,
139.]

Still another <DW64> 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 <DW64> Jndicted & sentenc]

     "Jack <DW64> servant to Mr Samuel Woolcot of
     Weathersfield thou art Jndicted by the name of Jack <DW64>
     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 <DW64>--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 <DW64>
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.








End of the Project Gutenberg EBook of The Trial and Execution, for Petit
Treason, of Mark and Phillis, Slaves of Capt. John Codman, by Abner Cheney Goodell, Jr.

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