Part 7 (1/2)

To appear before our Justices of our Superiour Court of Judicature Court of a.s.size & General Goal Delivery now holden at Cambridge within and for said County Tomorrow morning at Eight of ye Clock before noon Then and there to give Such Evidence in our Behalf as you know against Mark a Negro man & Phillis a Negro woman both of Charlestown in our County of Middles.e.x--

Hereof Fail not and so soon as may be make Return of this Writ with your Doings therein into the same Court

Witness Stephen Sewall Esq. at Boston the Sixth Day of August in the twenty ninth year of our Reign Annoq, Domini 1755

SAML WINTHROP _Cler_

[_Record of the Case._]

PROVINCE OF THE } _Anno Regni Regis Georgii secondi Magnae Ma.s.sACHUSETTS BAY } Britanniae Franciae Hiberniae vicesimonono._ MIDDLEs.e.x ss. }

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

By the Hon.o.ble. Stephen Sewall Esqr: Chief Justice Benjamin Lynde[4] } John Cus.h.i.+ng & } Esquires Justices Chambers Russell }

[Footnote 4: Judge Lynde makes a memorandum of this trial, and of the particulars of the executions, in his diary under date of July 9, 1755.--Lynde Diaries (privately printed, 1880), p. 179.--EDS. OF PROCEEDINGS.]

[_After reciting the words of the indictment, the record proceeds as follows, being, as far as where the record of the trial and sentence begins, an extension of a memorandum on the indictment._]

Upon this Indictment the said Phillis was arraigned and upon her arraignment pleaded not guilty and for trial put herself upon G.o.d and the Country and the said Mark was also arraigned upon this Indictment and upon his arraignment pleaded not Guilty and for trial put himself upon G.o.d and the Country, a Jury was thereupon Sworne to try the issue Mr. John Miller Foreman and fellows who having fully heared the Evidence went out to consider thereof and returned with their verdicts and upon their oath's say'd that the said Phillis is Guilty, and that the said Mark is Guilty, upon which the prisoners were remanded, and being again brot and set to the Bar, the Kings Attorney moved the Court that Judgment of Death might be given against them, whereupon they were asked by the chief Justice if they had ought to say why Judgment of Death should not be given against them, and having nothing material to offer Judgment of Death was p.r.o.nounced against them by the chief Justice in the name of the Court in form following that is to Say that the said Phillis go from hence to the place where she came from, and from thence to the place of Execution & there be burnt to Death, and that the said Mark go from hence to the place where he came from, and from thence be drawn to the place of Execution and there be hanged by the neck until he be dead and G.o.d Almighty have mercy upon their Souls. Ordered that these Sentences be put into Execution upon thursday the eighth[5] day of September next between the hours of one and five of the Clock in the Afternoon.

[Footnote 5: An error. It should have been ”eighteenth.”]

Warrant issued Sep. 6. 1755.

[_Writ of execution, or death-warrant._]

PROVINCE OF THE } _George the second by the Grace of G.o.d of Ma.s.sACHUSETTS BAY } Great Britain France and Ireland King MIDDLEs.e.x ss. } Defender of the Faith &Ca_

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

Greeting

Whereas at our Superiour Court of Judicature Court of a.s.size and General Goal Delivery begun and held at Cambridge within and for the County of Middles.e.x on the first Tuesday of August last the Grand Jurors for us for the Body of our said County of Middles.e.x did on their Oath Present That Phillis a Negro woman of Charlestown in the County of Middles.e.x Spinster Servant of John Codman late of Charlestown aforesaid Gentleman, not having the fear of G.o.d before her Eyes, but of her malice forethought contriving to deprive the Said John Codman her Said master of his life and him feloniously and Traiterously to kill and murder, she the said Phillis on the thirteenth day of June last at Charlestown aforesaid in the dwelling house of the said John there did of her malice forethought willfully felloniously and Traiterously put a Deadly Poison called a.r.s.enick into a Vial of Water and thereby did then and there Poison the same water--and That the said Phillis knowing the water aforesaid to be so poisoned did then and there feloniously willfully traiterously and of her malice forethought put one spoonfull of the same water so poisoned into a pint of the said John's watergruel and thereby poison the same watergruel--and that the said Phillis did then and there of her malice forethought felloniously willfully & traiterously in manner as aforesaid poison the watergruel aforesaid, with a felonious and traiterous Intent and design that the said John her said master then being should then and there eat the Same Watergruel so poisoned and thereby be Poisoned killed and murdered. And that one Elizabeth Codman not knowing the watergruel aforesaid to be so poisoned then and there Innocently gave the Same Watergruel so poisoned as aforesaid to the Said John to eat, and that the Said John then and there being the said Phillis's master and being altogether Ignorant of the watergruel aforesaid's being poisoned as aforesaid and suspecting no Evil did then & there eat the same watergruel so poisoned as aforesaid & that the said Phillis then and there was feloniously and traiterously present with the said Elizabeth & John knowing of & consenting unto the sd. Elizabeth's giving him the said John the watergruel aforesd. so poisoned as aforesaid & his eating the same as aforesd. And that the said John by means of his eating the watergruel aforesaid so poisoned as aforesaid there Languished for the s.p.a.ce of Fifteen hours & then at Charlestown aforesaid died of the Poison aforesd. given him as aforesaid--and so the Jurors aforesaid upon their Oath said that the said Phillis did at Charlestown aforesaid of her malice forethought in manner and form aforesaid willfully feloniously and traiterously poison kill & murder the said John Codman her Said master against our Peace Crown & Dignity, and The Jurors aforesaid upon their Oath further present That Mark a Negroman of Charlestown aforesaid Labourer and Servant of the said John Codman before the said Treason and murder aforesaid committed by the said Phillis in manner and form aforesaid did at Charlestown aforesaid on the twentieth day of June last of his malice forethought (the said Mark then being Servant of the said John Codman) felloniously & traiterously advise and incite procure & abet the Said Phillis to do & commit the said Treason & murder aforesaid against our peace crown & Dignity (as in Said Indictmt. is at large Set forth) upon which Indictment the said Phillis and Mark were Severally arraigned and upon their arraignment Severally pleaded not Guilty and for Tryal put themselves on G.o.d and the Country, and Whereas the said Phillis & Mark at our Court aforesaid were each of them convict of the crime respectively alledg'd to be committed by them as aforesaid by the Verdict of twelve good & lawful men of our Said County and were by the consideration of our Said Court adjudged to Suffer the Pains of Death therefor; as to us appears of Record Execution of which said Sentence doth still remain to be done we command you therefore that on Thursday the Eighteenth day of September instant between the hours of one & Five o'Clock in the day time you cause the said Phillis to be drawn from our Goal in our County of Middles.e.x aforesaid (where she now is) to the place of Execution and there be burnt to Death & also that on the Same day between the hours of one & five of the Clock in the day time you cause the Said Mark to be drawn from our Goal in our County of Middles.e.x aforesaid (where he now is) to the place of Execution & there be hanged up by the Neck until he be dead, & for so doing this shall be your Sufficient Warrant--Hereof fail not; and make Return of this writ with your doings therein into the Clerks Office of our Said Court as soon as may be after you have Executed the Same Witness Stephen Sewall Esqr: at Boston the sixth day of September in the Twenty ninth Year of our reign Annoque Domini 1755--

By Order of Court

NATHANIEL HATCH _Cler_

MIDDLEs.e.x. ss--September the 18th. 1755.

I Executed this warrant as above directed, by causing Phillis to be burnt to Death, and Mark to be hang'd by the neck until he was dead, between the hours of one and five a Clock of Said day--

RICHD. FOSTER _Sheriff_

It is worthy of observation that no such process as a formal warrant was required for a capital execution by the laws of England. In the King's Bench, the prisoner was committed to the custody of the marshal at the beginning of the trial, and an award of judgment upon the record was all the authority that that officer had for the execution.

Formerly, it was customary in courts of oyer and terminer, and of jail delivery, to authorize the execution by a precept under the hands and seals of three or more commissioners, of whom one, at least, should be of the quorum; but this custom had become obsolete at the time of this trial, and only a calendar, or abstract of the record, subscribed by the judge, was put into the hands of the sheriff for this purpose; and such is the practice in England, I presume, to this day.

Even Blackstone, who is so blind to many gross imperfections in the jurisprudence of his native country, is forced to remark, in view of the looseness of procedure in capital cases,--