“All Persons who after the 29th of September, 1720, shall set forth any Pyrate (or be aiding and assisting to any such Pyrate) committing Pyracy on Land or Sea, or shall conceal such Pyrates, or receive any Vessel or Goods pyratically taken, shall be adjudged accessary to such Pyracy, and suffer as Principals.
“All Persons who have committed, or shall commit any Offences, for which they ought to be adjudged Pyrates, may be tried for every such Offence, in such Manner as by the Act 28 Henry VIII, chapter 15, is directed for the Tryal of Pyrates; and shall not have the Benefit of the Clergy.”[180]
The enforcement of the English statute relating to piracy was variously interpreted in the colonial courts and local enactments sometimes superseded it in actual practice. Previous to 1700, the statute required that men accused of piracy should be sent to England to be tried before a High Court of Admiralty. Pound, Hawkins, Bradish, Kidd and other known pirates were accordingly sent in irons to London for trial. But the difficulties and delays, to say nothing of the expense, induced Parliament by an Act of 11 and 12 William III, to confer authority by which trials for piracy might be held by the Courts of Admiralty sitting in the colonies. On the other hand, the Massachusetts Court of Assistants, in 1675, found John Rhoades and others, guilty of piracy and sentenced them to be “hanged presently after the lecture.” This was in accordance with an order adopted by the Great and General Court on Oct. 15, 1673. When Robert Munday was tried at Newport, R. I., in 1703, it was by a jury in the ordinary criminal court, in open disregard of the King’s commission.
Governor Bellomont in a letter to the Council of Trade, described the situation in Massachusetts in 1699, as follows:—
“A pirate cannot suffer death in this province, and what to do with Bradish’s crew and Kidd and his men, I know not, and therefore desire your orders. The reason why their Act, that was approved in England, will not reach the life of a pirate is this: Piracy by the Law of England is felony without benefit of clergy and punishment with death. Here there’s no such thing in practice as the benefit of clergy; neither is felony punishable with death, but by their law the felon is only to make a three-fold restitution of the value of the offence or trespass.”[181]
The Courts of Admiralty held in the colonies were composed of certain officials designated in the Royal commission, including the Governor, Lieutenant-Governor, the Judge of the Vice-Admiralty for the Province, the Chief Justice, the Secretary, Members of the Council and the Collector of Customs. Counsel was assigned to the accused to advise and to address the Court “upon any matter of law,” but the practice at that time was different from the present. Accused persons in criminal cases were obliged to conduct their own defence and their counsel were not permitted to cross-examine witnesses, the legal theory at the time being that the facts in the case would appear without the necessity for counsel; that the judge could be trusted to see this properly done; and the jury would give the prisoner the benefit of any reasonable doubt.
Trials occupied but a short time and executions generally took place within a few days after the sentence of the Court was pronounced. During the interval the local clergy labored with the condemned to induce repentance and all the terrors of Hell were pictured early and late. Usually, the prisoners were made the principal figures in a Sunday spectacle and taken through the streets to the meeting-house of some prominent minister, there to be gazed at by a congregation that crowded the building, while the reverend divine preached a sermon suited to the occasion. This discourse was invariably printed and avidly read by the townsfolk, so that few copies have survived the wear and tear of the years. From these worn pamphlets may be learned something of the lives and future of the prisoners as reflected by the mental attitude of the attending ministers.
The day of execution having arrived, the condemned prisoners were marched in procession through the crowded streets safely guarded by musketeers and constables. The procession included prominent officials and ministers and was preceded by the Marshal of the Admiralty Court carrying “the Silver Oar,” his emblem of authority. This was usually about three feet long and during the trial was also carried by him in the procession of judges to the court room where it was placed on the table before the Court during the proceedings.[182]
Time-honored custom and the Act of Parliament, as well, required that the gallows should be erected “in such place upon the sea, or within the ebbing or flowing thereof, as the President of the Court ... shall appoint,”[183] and this necessitated the construction of a scaffold or platform suspended from the framework of the gallows by means of ropes and blocks. When an execution took place on land, that is to say, on solid ground easily approached, it was the custom at that time to carry the condemned in a cart under the cross-arm of the gallows and after the hangman’s rope had been adjusted around the neck and the signal had been given, the cart would be driven away and the condemned person left dangling in the air. In theory, the proper adjustment of the knot in the rope and the short fall from the body of the cart when it was driven away, would be sufficient to break the bones of the neck and also cause strangulation; but in practice this did not always occur.
In the winter of 1646, a case of infanticide was discovered in Boston by a prying mid-wife and when the suspected mother was brought before a jury and caused to touch the cloth-covered face of the murdered infant, the covering was instantly stained with fresh blood. Then the young woman confessed. This was the medieval “ordeal of touch” which was practiced in Massachusetts as late as 1768. The young mother was condemned to death and Governor Winthrop relates in his “Journal,” that “after she was turned off and had hung a space, she spake, and asked what they did mean to do. Then one stepped up and turned the knot of the rope backward and then she soon died.”