SOME ANCIENT METHODS OF PUNISHMENT IN MASSACHUSETTS.
Scarcely anything indicates so accurately the predominant traits and condition of a people at any given period, as do the laws by which they are governed and the mode in which those laws are administered. Hence, in studying the early history of Massachusetts much important aid may be derived from the records of the courts and magistrates of that time. These give us a tolerable correct idea of the laws then in force which were designed to regulate the conduct of men in the various relations of life and show what was the practical administration of those laws. This is quite as true (perhaps more so), of the laws concerning what may be termed minor offences or breaches of social duty, for which men were held legally accountable, as it is of the graver crimes.
Some of the laws relating to this class of minor offences have undergone changes within the last two hundred years, particularly since our separation from the Mother Country.
These changes have been not so much in regard to the nature and description of the offence itself, as in regard to the penalty. They have in Massachusetts at the present time, and have had ever since the American Revolution, laws against drunkenness, vagrancy, petty larceny, libel and slander, profane cursing and swearing, Sabbath breaking, unlawful games or plays, lewdness, common railing and brawling, and idle and disorderly conduct generally. Our Colonial ancestors had laws substantially like those in force so far as relates to the offences themselves.
In fact, the present statutes on these subjects are many of them copies of the provincial statutes. But the penalties are quite different. They now punish breaching of these laws by a small fine or by imprisonment for a short term, or by both. For similar breaches of the statute and common law in the early history of Massachusetts some very different penalties were provided. These were actually enforced in frequent instances, which is hardly true of similar cases at the present day.
The Magistrates and Courts that administered the laws in Massachusetts during the first century and a half after its settlement were full believers in the propriety and efficacy of corporal punishment for a certain class of transgressions. Having based their criminal code largely upon that of Moses, they were well persuaded that, if in no case they exceeded the Hebrew limit of forty stripes, they would have the Divine sanction. With this illustrious precedent constantly in view as a rule of action, they did not hesitate to apply the rod whenever it seemed to them appropriate and adequate penalty for the offence. Crimes of a graver character were dealt with by tribunals of larger jurisdiction and punished by imprisonment or death. But for a large class of misdemeanors, particularly such as were considered scandalous or tending to disorder and of evil example, the rod was a very frequent instrument of punishment.
It was a matter within the discretion of the Magistrate to some extent. This office was held by William Pynehon, of Springfield, Mass., for the first eleven years, afterwards for half a century by John Pynehon and his associates. In awarding this punishment of whipping little regard seems to have been paid by the court to the sex or social position of the offender. If the infliction of the penalty tended to disgrace the culprit, the commission of the offence was in itself disgraceful. The degrading punishment was regarded the just and proper sequence of the disgraceful crime.
The constable was the officer by whom the sentence was executed, and the public whipping post was the place. The time was sometimes the day on which the court was held. Occasionally, the day of the weekly religious lecture was designated as the time for the infliction.
Sometimes whipping was an alternative sentence to be inflicted if the offender failed to pay his fine. Often it was the only punishment awarded.
Some instances will be given, taken from the records—most of them are from the Pynehon record, containing cases tried by William Pynehon as a Magistrate, and cases tried by his son, John Pynehon, in connection with Eleziar Holyoke and Dr. Samuel Chapin who were commissioners appointed by the General Court.
False Reports, Slanders, etc.
In May, 1645, the General Court enacted a law designed to suppress the invention and circulation of false reports, whether injurious to private individuals or to the public in general.
The preamble was in these words:
“Whereas, Truth in words, as well as actions, is required of all men, especially of Christians who are the professed servants of the God of truth; and
“Whereas, All lying is contrary to truth, and some sort of lies are not only sinful (as all lies are), but also pernicious to the public weal and injurious to particular persons. It is therefore ordered that every person who shall wittingly and willingly make or publish any lie pernicious to the public weal or tending to the damage or injury of any particular person, or with intent to deceive and abuse the people with false news and reports shall be punished.
For the 1st offence a fine of 10 shillings, &c.
For the 2d offence a fine of 20 shillings or be whipped upon the naked body not exceeding 10 stripes.
For the 3rd offence a fine of 4 shillings or 15 stripes, &c., &c.”
The following is a case for slander in imputing to a woman the offence witchcraft.
“May 29 and 30, 1649—The widdow Marshfield, complains against Mary, the wife of Hugh Parsons, of Springfield, for reporting her to be suspected for a witch, and she produced Jo Matthews and his wife for her witnesses who were examined upon oath. Jo Matthews said that Mary Parsons told him how she was taught to try a witch by a widdow woman that now lives in Springfield, and that she had lived in Windsor, and that she had three children, and that one of them was married, and at last she said it was the widdow Marshfield. Jo Matthews answered that he believed no such thing of her—but, thereupon, said he, Mary Parsons replied, you need not speak so much for goody Marshfield, for I am sure (said she), she hath envied every woman’s child in ye end (?) till her own daughter had a child, and then said she yt child died and ye cow died, and I am persuaded said she, they were bewitched, and she said moreover, it was reported to her by one in town that she was suspected to be a witch when she lived in Windsor, and that it was publicly knowne that the devill followed her house in Windsor, and for aught I know said she follows her here.
Goody Matthews saith upon oath that when Goody Parsons came to her house she said to her, I wonder what is become of the half pound of wool. Goody Parsons said that she could not tell except the witch had witched it away. I wonder, said I, that you talk so much of a witch—do you think there is any witch in towne? Yes, said she, and she came into my house while the wool was cardinge. Who is it, said I? She said that An Stebbinge had told her in Mr. Smith’s chamber that she was suspected to be a witch in Windsor, and that there were divers strange lights seen of late in the Meddow that were never seen before ye widdow Marshfield came to town, and that she did grudge at other women that had children because her daughter had none, and about the time (namely of the grudging) ye child died and ye cow died.
Goody Parsons did stiffly deny the truth of their testimonys, but the said witness had delivered their testimony upon oath, and finding that she had defamed ye good name of the Widdow Marshfield I sentenced her to be well whipped on the morrow after lecture with twenty lashes by the constable unless she could promise the payment of 3L to ye Widdow Marshfield for and towards the reparation of her good name.”
Marriage—Plymouth Colony Laws.—1638.
“Whereas divers persons unfit for marriage both in regard of their young years and also in regard of their weake estate, some practising the enveagling of men’s daughters and maids under guardines contrary to their parents and guardians likeing, and of maid servants without leave and liking of their masters.
“It is therefore enacted by the Court that if any shall make any motion of marriage to any man’s daughter or mayde servant not having first obtayned leave and consent of the parents or master so to doe, shall be punished either by fine or corporal punishment or both, at the discretion of the bench and according to the nature of the offence. It is also enacted that if a motion of marriage be duly made to the master, and through any sinister end or coveteous desire he will not consent thereunto, then the cause to be made known unto the Magistrates and they to set down such order therein as upon examination of the case shall appear to be most equal on both parts.”
Courtship and Marriage—Province Laws.
“May 1647. Whereas God hath committed the care and power into the hands of parents for the disposing of their children in marriage, so that it is against rule to seek to draw away the affection of young maidens under pretence of purpose of marriage, before their parents have given way and allowance in that respect; and whereas it is a common practice in divers places for young men irregularly and disorderly to watch all advantages for their evil purposes to insinuate into the affections of young maidens, by coming to them in places and seasons unknown to their parents for such ends, whereby much evil hath grown amongst us to the dishonor of God and damage of parties; for prevention whereof for time to come:
It is further ordered that whatsoever person from henceforth shall endeavour, directly or indirectly, to draw away the affection of any maid in this jurisdiction, under pretence of marriage, before he hath obtained liberty and allowance from her parents or governors, or in the absence of such, of the nearest magistrate, he shall forfeit for the first offence five pounds, for the second towards the party ten pounds, and be bound to forbear any further attempt and proceedings in that unlawful design without or against the allowance aforesaid; and for the third offence upon information or complaint by such parents or governors to any Magistrate, giving bond to prosecute the party, he shall be committed to prison; and upon hearing and conviction by the next court, shall be adjudged to continue in prison until the court of assistants shall see fit to release him.”
In 1641, before this statute was enacted, a case occurred which Mr. Pynehon records, in which he sentenced parties for the misconduct forbidden by this statute. This must have been under his general authority to examine misdemeanors and inflict corporal punishment.
“January 11, 1640, it is ordered that John Hobell shall be well whipt by the constable for two misdemeanors, first for proceeding to get promises of marriage from Abigail Burt, after that both he and she had been prohibited by her father several times (and also for offering and attempting to doe the act of fornication with her as they both confesse, though as far as we can discerne by any proof of justice the act was not done).
Also Abigail Burt is found guilty in both the said faults, and is also to be well whipt by the constable for the said faults.”
Common Railers and Brawlers were punishable by the old provincial laws as they are by our present laws, but in a different way. A curious case is recorded by Mr. Holyoke as having come before the courts at the time John Pynehon, Samuel Chapin and Eliziar Holyoke were the Magistrates.
“March 13, 1655—Obadiah Miller complaynes against Joane, his wife, for abusing him with reproachfull tearmes or names as calling him foole, toad, vermine and threateninge him; as also for yt yesterday shee fell upon him endeavoring to beat him, at which tyme shee scratched his face and hands. The case being examined it was found that Joane, the wife of Obadiah Miller was guilty of very evil behavior towards her said husband; it being proved by the testimony of John Lamb and Tho. Miller.
John Lamb testifyed he heard her say shee would knock him on the head, and yt shee did often call him foole and other reproachful tearmes.
Thomas Miller testifyed yt wn his brother Obediah, his wife lived with him she did comonly call him foole and vermine; and he doth not remember he ever heard her call him husband, and that shee said shee did not love him but hated him; yea shee here said shee did not love him and shee should not love him.
For which, her vile misbehaviour towards her husband, she was adjudged to be taken forth to ye whipping post, there to receive soe many stripes on ye naked body as ye commissioners should see cause to inflict on her; whereuppon shee was brought forth, but by her humileation and earnest protestations for better carriage towards her said husband, the punishment was remitted and this sentence passed yt for the least miscarriage to her husband after this tyme, shee should be brought forth agayne to receive a good whipping on the naked body well laid on.”
Husband or Wife Striking.
Colony Laws, Chap. 66.
October 1650. “It is ordered by the Court and authority thereof, that no man shall strike his wife, nor any woman her husband, on penalty of such fine not exceeding ten pounds for one offence, or such corporall punishment as the County Court shall determine.”
The Colony laws regarding the Observance of the Sabbath were quite numerous and strictly enforced by various penalties.
At a court before the Commissioners John Pynehon, Eliziar Holyoke and Samuel Chapin. May 8th, 1654.
“Daniel, a Scotchman servant to Thomas Merick being found to profhane the Sabbath in idle walkinge about, and not cominge to ye ordinances of ye Lord, yea though he had warninge to ye contrary; and being also complayned of by his said master for his grevious idleness in neglecting his busyness for severall dayes, yea synce he was called before authority for the like misbehaviour formerly at wh tyme he promised amendment; but he grew worse and worse and therefore was adjudged to be whipped on ye bare back wth five lashes well laid on, and execution was done accordingly.”
Another case in which four young men were charged with violation of the Sabbath was attended with this peculiarity—that two of the culprits were sons of Holyoke, one of the two Magistrates before whom the trial was had.
This trial was in 1664, and was thus recorded in the handwriting of Holyoke.
“Thomas Noble, Constable, presenting Thomas Thomson and John Horton for that last Sabb., was fortnight, June ye 7, they made a fray in ye street in ye evening about ½ an hour after sunsett. Samuel & Elizar Holyoke being accessory in ye said fray.
The Commissioners uppon examination of ye case doe fynd that the said foure persons did profane the Lord’s day, and therefor doe determine that they all shall be admonished thereof & that Thomas Thomson, John Horton, and Samuel Holyoke shall pay a fyne of five shillings apeece to the County, or be whipped by the Constable on ye naked body with three stripes apeece; whereuppon they were all admonished & the 3 former desiring to pay ye fynes, then otherwise were ordered to pay them to ye County Treasurer.”
Samuel Holyoke upon whom this sentence was passed by his own father, was then a boy of seventeen years. Twelve years afterwards in 1676, he was the Capt. Holyoke who so greatly distinguished himself in the celebrated Falls fight with the Indians.
Assaulting of Women.
Province Laws Ch. 105-1711.
Sec. 2. And be it further enacted by the authority aforesaid, that whosoever shall be convicted of assaulting or offering any insolence or violence to any woman or mankind in the fields, streets or lanes in any town, or of despoiling them, damnifying or defacing of their attire or ornaments, or attempting the same, shall be punished by being publickly whipped, not exceeding two stripes, or by being committed to the house of correction to receive the discipline of the house and continue there by the space of thirty days.
The discipline of the house by a law passed in 1699, included among other things, “moderate whipping not exceeding ten stripes at once, which shall be inflicted at their first coming in and from time to time, in case they be stubborn, disorderly or idle.”
(At a Court holden at Northampton, June 19, 1672, John Edwards, of Northampton, who came to that place from Virginia, was tried for some misdemeanor in lascivious carriage towards divers women of Northampton, and the case being searched into. It is found and proved yt the sd Edwards hath been notoriously lascivious and hath carried himself very debauchedly towards diverse women of N (as by test on file appears) and yt he hathe traded? this way:)
“The Courte doth adjudge him to be whipt on ye naked body with 20 stripes well laid on.”
A different case with a different penalty is this. At a County Corte holden at Northampton, March 31, 1674.
“Martin Smith, resident at Pacomtuck, being bound over to this Corte by N. Comiss: for offering abuse to Jedidiak Strong’s wife (in ye street near her father Woodwards house) laying hold on her to kiss her as shee thinks, and she testifying her offence to be soe affronted whereby shee sayth also shee was somewhat affrighted; he appearing in Corte and owning his fact and condemning himself and seeming sorrowful that he should be left to such folly, was fyned only 20s. to be pd to ye Treasurer and 2s. and 6d. as ye Recorder’s fees.”
Sitting in the Stocks was a mode of punishment for certain offences to which persons of either sex were sometimes subjected. Occasionally it was ordered as an alternative sentence in a case where the culprit failed to pay the fine imposed.
Webster’s Unabridged describes the stocks as a machine consisting of a frame of timber, with holes in which the feet, or the feet and hands of the criminals were confined by way of punishment. The picture gives a much better idea of this punishment than can be gained from the definition. The offender sits on a bench with a high back, his feet projecting through two holes in an upright plank in front secured so that they cannot be withdrawn or moved. In this situation he can neither lie down or stand up, but must remain fixed until released. The stocks were usually located in some public place where the culprit could be seen by all passers by—and not seldom he was subjected to the taunts and ridicule of the crowd that were sure to gather on such an occasion.
Profane Cursing and Swearing was one of the offences subjecting the transgressor to the punishment of the stocks.
Colony Laws, Chap. 94.
An Act Against Swearing and Cursing.
“Sec. 1. It is ordered by this Court and authority thereof, that if any person within this jurisdiction shall swear rashly or vainly by the holy name of God, or other oath, he shall forfeit to the common treasury for every such offence ten shillings; and it shall be in the power of any Magistrate by warrant to the constable, to call such person before him, and upon sufficient proof to sentence such offender, and to give order to levy the fine; and if such person be not able or shall refuse to pay the said fine, he shall be committed to the stocks, there to continue not exceeding three hours nor less than one hour.
Sec. 2. And if any person shall swear more oaths than one at a time before he remove out of the room or company where he so swears, he shall then pay 20 shillings. The like penalty shall be inflicted for profane and wicked cursing of any person or creature, and for the multiplying the same as is appointed for profane swearing, and in case any person so offending by multiplying oaths or cursing, shall not pay his or their fines forthwith, they shall be whipt or committed to prison till they shall pay the same at the discretion of the Court or Magistrate that shall have cognyance thereof.”
The wife of Henry Gregory, one of the early settlers here, transgressed this law, and her case came before Mr. William Pynehon as a Magistrate. His record of it is as follows under date of February 15, 1640:
“Goody Gregory being accused by oath of John Woodcoke & Richard Williams for swearing before God I could break thy head: She did acknowledge it was her great sin & fault & saith she hath bin much humbled for it.
She is fined 12d (12 pence) to the poore to be paid to Henry Smyth within a month; or if she doe not she is to sit 3 hours in the stocks.”
Common Scold.
By the English common law in force here in the early times a common scold was liable to a peculiar form of punishment. Blackstone (4 Black. Com. 168) says:
“A common scold—communis rixatrix—(for our law confines it to the feminine gender) is a public nuisance to her neighborhood for which offence she may be indicted, and if convicted shall be sentenced to be placed in a certain engine of correction called the trebucket, castigatory or cucking stool, which in the Saxon language is said to signify the scolding stool, though now it is frequently corrupted into ducking stool, because the residue of the judgment is that when she is placed therein she shall be plunged in the water for her punishment.”
Oct. 24, 1673—“John Petty complaines agt Goodwife Hunter for offering to mischiefe his wife & giving her ill language; calling her as ye testimonys speake:
Railing, scolding & other exorbitancys of ye Young appearing as by ye Testimonys of Mary Brookes & Mercy Johns on file & also ye neighbors, declaring her continual trade upon every occasion to be exorbitant in her Toung as particularly Sam Marshfull & John Bagg so declared. I sentenced her to be gaged or else set on a ducking stool & dipped in water as law provides. Shee to choose wh of ym shee pleases within this half houre; or else I do determine & order either as I see cause. Shee not choosing either, I order her to be gagged & so to stand half an hour in ye open street wh was done accordingly; & for her reproaching Goodie Petty shoe did openly cleare her of all shee spake agt her & asked forgiveness wch G. Petty accepting of shee was released as to yt.”
The Puritan Fathers are often blamed on account of their witchcraft persecutions. Long after Massachusetts had confessed her wrong-doing, England and Germany put people to death for witchcraft. Twenty-five years after persecution had ceased in New England, Chief Justice Matthew Hale, of England, sent a mother and her little daughter to the scaffold for the same offence; and one hundred and one years afterwards Germany did likewise. The age in which these men lived is responsible for these things, and not the men themselves. They were founders of schools, and were not intolerant. I do not believe in the cry of the “good old times” simply. There are more good men and women now than ever before. I think it almost unfortunate to explain away witchcraft and some other peculiar things of those times, as then some people would have nothing to talk about and sneer at and criticise the Pilgrim Fathers. Some persons like to continue this. Dr. Blake of Boston, says that a good Baptist brother had often met him and chaffingly asked, “How is Roger Williams to-day?” when Mr. Blake, tiring of the question, answered, “Oh, he is warm and dry by this time.” The Pilgrims had especially three noble qualities: Earnestness, definiteness of belief and stalwartness of spiritual life.