Alas! well may we ask with astonishment if it is possible that such a state of society really existed in the England of Hannah More, of Sir William Jones and Edmund Burke,--the land throughout which the Wesleys were preaching and singing to eager mult.i.tudes of the free grace and abounding mercy of G.o.d; where the pious Cowper was pleading for the relief of "insolvent innocence," and Clarkson and Wilberforce and Granville Sharp were rousing the public mind to the evils of slavery in distant colonies!

The case of pet.i.t treason which we have been considering occurred nine years before Beccaria startled all Europe with "the code of humanity,"--his treatise on crimes and punishments; yet had he known of our experience in this Province, he could have pointed to Ma.s.sachusetts as the strongest practical ill.u.s.tration of the truth of his theory, that it is not necessary to multiply extreme penalties in order to prevent crime, but that we are to look for the amelioration of manners and the diminution of public and private wrongs to the mental and moral education of the people rather than to the terrors of the law.

In 1777, when the Revolutionary War was beginning to a.s.sume its gravest aspect, and when the hopes of traitors were reviving, the barbarous incidents of the punishment for treason were abolished by the legislature of Ma.s.sachusetts, and this crime was made punishable simply by hanging. Eight years later the distinction between pet.i.t treason and murder was abolished,--an improvement of the criminal code in which we were followed by Great Britain five years later still.[30]

[Footnote 30: The Ma.s.sachusetts act is as follows:--

"Whereas it does not appear reasonable any longer to continue the distinction between the crimes of murder and pet.i.t treason:

"Be it enacted by the Senate and House of Representatives, in General Court a.s.sembled, and by the authority of the same, That from and after the pa.s.sing of this act, in all cases wherein heretofore any person or persons would have been deemed or taken to have committed the crime of pet.i.t treason, such person or persons shall be deemed and taken to have committed the crime of murder only, and indicted and prosecuted to final judgment accordingly; and the same punishment only shall be inflicted as in the case of murder.--[This act pa.s.sed _March 16, 1785_.]"]

So that it was possible that our good city of Boston might have been disgraced by one of these horrible executions as late as 1785, and that a delicate woman could, with all the solemnity of legal forms, have been publicly burned to death at Tyburn as late as 1790!

In point of fact such executions occurred in England long after the burning of Phillis. A memorable case is that of Anne Beddingfield, who was burned for pet.i.t treason at Rushmore, near Ipswich, in 1763.

In 1813 the last of the minor infamous punishments, such as whipping, branding, the stocks, the pillory, cutting off ears, slitting noses, boring tongues, &c., were abolished in this Commonwealth.

As for hanging in chains, I cannot find when the custom was discontinued in Ma.s.sachusetts. I do not remember to have read of an instance of this kind since the adoption of the Const.i.tution, though I have made no special search for such an instance. Some of my hearers may be able to refer me definitely to the time and reason of the change.

In England, by the stat. 25 Geo. II., ch. 35 (1752), which was three years before the execution at Cambridge, provision was made that hanging in chains should be included in the sentence to be p.r.o.nounced by the court against all persons convicted of murder, and that the sentence should be executed on the next day but one after it was p.r.o.nounced. This was changed by the stat. 9 Geo. IV., ch. 31, so as to give the court a discretion to order hanging in chains or dissection; and the next year this act was extended to Ireland. By the stat. 2 & 3 Wm. IV., ch. 75, the court was authorized to order the body to be hung in chains or buried; and, finally, by the stat. 4 & 5 of Wm. IV., ch.

26 (July 25, 1834), all laws requiring bodies to be hung in chains were repealed.

No such sudden punishment as that prescribed by the act of parliament of the 25 Geo. II., could be legally inflicted here,--at least during the colonial period; for the colonial ordinance of 1641 required that four days at least should intervene between judgment and execution.

The only barbarous treatment of the bodies of criminals authorized by law in Ma.s.sachusetts since the adoption of the Const.i.tution, that I am aware of, was prescribed by the act of 1784, to discourage the practice of duelling, which revived some of the provisions of a law of the Province, pa.s.sed in 1728, denying duellists the right to be buried in a coffin, and requiring the coroner or executioner to see that their bodies be interred near the place of execution, or in the public highway, with a stake driven through them.[31]

[Footnote 31: Compare act of June 30, 1784, with Prov. Stat. 1728-29, ch. 15: Prov. Laws, vol. ii. p. 516.]

Now, happily, capital punishment is restricted in this Commonwealth and in England to two offences only; and while, here, even high treason is punishable simply by imprisonment, in England, strong efforts have been repeatedly made, and recently with a fair prospect of ultimate success, to induce parliament to imitate our example and take away the death penalty from this the highest crime known to the common law.