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]
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]
But, to proceed with a definition of the crime committed by these negroes, 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.
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.
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:—