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.
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]
Two other negroes who were suspected of complicity with Maria were ordered to be transported. The record is as follows:—
"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
James Pembertons
negro sentenceThe like Judgment & sentenc was declard against James Pemberton's negro in all respects as agt Chessaleer negro &c.[22]
Still another negro 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:—
"Jack negro servant to Mr Samuel Woolcot of Weathersfield thou art Jndicted by the name of Jack Negro 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 Leifteñat Wm Clarks house in North Hampton. by taking Jack negro
Jndicted & sentenca 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 Negro—The Lord be mercifull to thy soule sajd the Gouernor"[23]
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,—