Part 8 (1/2)

[Footnote 13: Hist. Coll. Ess.e.x 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 pa.s.sed 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 Ma.s.s. Hist.

Soc., Jan. 1, 1798: 1 Ma.s.s. Hist. Coll., vol. v. p. 107.]

I have said that this is the only case of pet.i.t 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 pet.i.t 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 a.s.sistants.[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 Ma.s.s. Hist. Soc. Proc., vol. iii. p. 320.]

[Footnote 16: Boston, Sept. 6, 1681.]

”Marja[17] Negro 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 Negro for not hauing the feare of G.o.d 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 t.i.tle 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 p.r.o.nnonc't agt hir by the Honn.o.ble 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 Ma.s.s. 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 a.s.sistants, 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 d.a.m.nified. [1652.][18]

[Footnote 18: Ma.s.s. Colony Laws, ed. 1672, p. 52.]

It will be observed that the law prescribes no such punishment as was ordered by the a.s.sistants, 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 G.o.d's word.”--Declaration of the General Court: Hutch. Coll. Papers, p. 207. And see the first article of the Colonial ”Liberties,” in Ma.s.s. 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 a.s.sistants, 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. c.o.ke'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 c.o.ke's report of it, therefore I sent for the record, ... and there is judgment of death given, but no judgment that his right hand should be cut off. It is indeed so related in Stowe's Chronicle, and in fact his hand was cut off, but there was no judgment for it.”

Compare 3 Inst., ch. 65 (p. 140 [Symbol: dagger]) with 2 Ld. Raym., 978, 982.]

Two other negroes who were suspected of complicity with Maria were ordered to be transported. The record is as follows:--

[Sidenote: ”Chessaleer negros Sentence”]

Chessaleer negro servant to Tho. Walker brickmaker now in Goale on suspition of Joyning wth Marja Negro in Burning of Dr Swans' & ---- Lambs houses in Roxbury in July last The Court on Consideration of the Case Judged it meet to order that he be kept in prison till his master send him out of the country & then dischardg ye charges of Imprisonment wch if he refuse to doe aboue one moneth the country Tresurer is to see it donne & when ye chardges be defrayd to returne the ouerplus to ye sd Walker

[Sidenote: James Pembertons negro sentence]

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