USA > Rhode Island > Providence County > Providence > State of Rhode Island and Providence Plantations at the end of the century : a history, Volume 3 > Part 46
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1Pilgrim Republic, Goodwin, 160.
2Fiske's Beginnings of New England, 142 ...
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from the first those enactments against every sort of wiekedness and vice, namable and unnamable, which have so often proved an enigma to the reader of early colonial history.
The State of Rhode Island and Providence Plantations was settled by men who were of the best in Massachusetts Bay and Plymouth colonies, with the dependents and servants of these. The intellectual, moral and religious value of the new colony did not at first greatly differ from that of its neighbors on the east and on the west. In the beginning it certainly would not suffer by comparison with any other. It is worthy of note that the first erime committed within the borders of Rhode Island of which any record remains was not the deed of a resident of Rhode Island, but of renegade apprentices from Plymouth. It may be interesting to relate the particulars of this crime as they have been preserved in Massachusetts records.1
One Arthur Peach, twenty years of age, a runaway servant from Virginia, came to Plymouth and was for a time in the employ of Governor Winslow. He was a worthless scoundrel and prepared for any desperate aet. ' He was out of means and unwilling to work; he was also deeply in debt to honest men who clamored for what was due them. He had come to Plymouth as a fugitive apprentiee ; he would leave as an absconding debtor. Taking with him three indentured servants of his own quality, he started, as was believed, for the Duteh settlements on Manhattan. At a place some four or five miles from Providence these men perpetrated a deed, the atrocity of whose details is but rarely exceeded in the annals of erime. Diseovering an un- armed Indian as he rested on the edge of a swamp not far from the footpath in which they were traveling, they approached and invited him to smoke with them. As he came near, unsuspieious of their evil intent, Peach stabbed him twice, in the body and in the thigh. Two of the others then attacked him; but avoiding their weapons he ran into the swamp, they pursuing, where he fell in the mire and water, rose and ran again, fell and rose again, doubled on them, ran back and forth, till he at last fell and was unable to rise. They now lost sight of him, and not doubting that he was dead or would soon die, they went back to his pack, opened it and took whatever they wanted- three beaver skins, three woolen eoats, five fathoms of wampum peage, and some beads. About this time it was reported to Roger Williams that four destitute white men who had been lost for five days in the woods, were in the neighborhood. At onee he sent them a supply of provisions, invited them to his own house and entertained them hos- pitably over night. The next day he sent them refreshed on their journey toward Conneetieut, as he supposed. They went, however, direetly and by the shortest route to Acquidneek. They afterward
1See also Town Papers, Providence.
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proved to be Peach and his companions. In the meantime the wound- ed Indian crawled out of the swamp into the path, where he was found by three men of his own tribe. Word was taken to Mr. Williams, who had him brought in, summoned to his aid the two physicians of the town, Dr. James and Dr. Greene, and did for him all that could be done. He lived only long enough to make a clear and full statement of the affair. The murderers were pursued, overtaken, and three of them captured. One escaped and was never afterwards heard from. Mr. Williams wrote the particulars of the affair to Governor Win- throp at Boston, asking his advice as to what should be done with the villains. There was no question as to their deserts, but under what jurisdiction the case might fall was in doubt. Mr. Williams thought that as they had come from Plymouth they should be carried back to that place for trial and punishment. Since there was no well-estab- lished government as yet in Rhode Island, this would seem to be the only reasonable conclusion, and it was found that Governor Winthrop held this view. They were accordingly taken to Plymouth under a suitable guard, where they were tried, convicted, and after the custom of that day, speedily executed. There was, however, much dissatisfac- tion on the part of the Plymouth colonists that three white men should die for the murder of a single Indian. These warmly urged that a life for a life would meet all the requirements of justice in such a case. Mr. Williams, Dr. James, and several Narragansett Indians were pres- ent in court as witnesses against the accused, and in view of the senti- ment just mentioned, very properly remained to see them hanged.1
In the earliest list of "Twenty-five acre men" who were received as inhabitants of Providence in 1645, is the name of John Clauson. Roger Williams says that he, with some Indians, found Clauson naked and starving in the woods. Where he came from or why he was in the place where they found him, or what was the occasion of his being in such a plight, we are not told. No one in Providence knew him. It is certain only that he was a Dutchman ; but all the circumstances indicate that he was a runaway apprentice from some one of the neighboring colonies, perhaps from Manhattan, not unlikely
from Massachusetts. Mr. Williams brought him to town, took him into his family, treated him with much kindness, taught him to read, gave him a Dutch testament and had him learn the carpenter's trade. A little later complaint was made against him that he was illegally using the common land ; and again, at the instance of Richard Harcutt he was put under bonds to keep the peace. He also had some personal difficulty with Roger Mowry and Samuel Bennett, two prominent citizens of the town. Mr. Williams relates that he was
1The Pilgrim Republic, Goodwin, 406.
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"grieved at his folly and forwardness." He was evidently of a rough and lawless temper.'
On the night of January 4th, 1660, Clauson was attacked near his dwelling, which was in the vieinity of what is now the North Burial Ground, from behind a clump of barberry bushes, by an Indian named Wau Manitt. At the first blow Clauson's chin was split open and he was mortally wounded in the ehest. After lingering in great agony for two or three days, and receiving such care as neighbors could give him, he died, having as tradition asserts uttered a strange curse upon one Herrendeen, whom he believed to be the instigator of the ‘ attack, "That he and his posterity might be marked with split chins and haunted by barberry bushes." Wau Manitt was imme- diately apprehended, placed in irons and confined in Roger Mowry's public house, with a watch of eight able-bodied citizens to guard against his escape. After the burial of Clauson the freemen were called together in town meeting to take sueh action as the case demand- ed. Roger Williams acted as interpreter. The decision was that the prisoner be sent to the colony prison in Newport till the date appointed for his trial. He was taken there; but no account of his conviction and execution is at hand. However, in view of the fact that he was only " A heathen savage" and undoubtedly guilty, we may fairly eon- clude that the matter was neither forgotten nor overlooked by those who firmly believed that every "Son of Adam is his brother's keeper and avenger." There is no reason to suppose that Herrendeen was ever called to account for the part which the dying Clauson accused him of having in his taking off. This was the first murder committed in the town of Providence.2
An account of the first case of burglary in the colony of which any record remains is also in point. On the twenty-third of 'April, 1648, a writ was served upon Wesountup, an Indian living in Mashapaug, charging him with having broken into the house of Widow Sayre four days earlier, and with taking therefrom several pareels of goods. To this charge Wesountup very naturally pleaded not guilty. On the same date and for the same offense a writ was issued against another Indian ealled Nanhiggan, whose home was at Pawtuxet. He also pleaded not guilty. Each Indian aecused the other of the erime of which himself was aeeused. Wesountup testified at length against Nanhiggan, saying that he came to town with Nanhiggan and that his purpose was to work for Mr. Scott; that they passed the night together on the west side of the river, where there were a number of Indians: that they had no communication with these Indians and were not seen by them ; that Nanhiggan took a ladder from the premises of Nicholas Power and set it up against Widow Sayre's house, and was thus able
1 Town Papers.
? Arnold's Rhode Island, vol. i, 465.
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THE POOR, THE DEFECTIVE AND THE CRIMINAL.
to reach a hole in the gable near the roof, through which he entered ; that he put out at this hole a eoat of skins and three loaves of bread : that he afterward opened the door and persuaded him, Wesountop, to go in and get fire to light a tobacco pipe ; that in this way it eame about that he, Wesountup, was found and taken in the house; and that no other Indian was present or consenting to what was done. Nanhig- gan, being put upon his examination, declared that Wesountup was reekoned a common thief where he was best known ; that when he had found him employment he was not permitted to work because of his bad reputation ; that he had not seen Wesountup for twenty days ; and that he knew nothing at all about the robbery of Widow Sayre's house. He ealled three Indians to confirm his statement. The examiners, however, found him probably guilty, and gave him into the custody of the town sergeant until further orders. At a later date he was brought to trial before a court composed of a majority of all the male inhabitants of the town, convieted and sentenced to be whipped with twenty lashes well laid on. A like verdict was found in the ease of Wesountup and a like penalty imposed.1 As to the crimes committed. the rank of the culprits in society, and the disposition made of them, these cases are typieal and characteristie of the time in which they oceurred.
The settlements at Providence, at Warwick, and on the Island of Aequidneek, were at the first and for several years in all respeets separate and independent colonies. Neither of them was recognized by charter or patent, and neither had protector or patron in England. In a very real sense each was apart and separate from all the rest of the world besides. The men of each settlement met in town meeting, agreed upon the terms on which they were willing to live together, and framed sueh rules, few and simple, as were calculated to secure the rights of individuals and ad- vance the general prosperity of a small community composed of laborious and law-abiding citizens. As the population in- ereased and beeame more varied in its character, something addi- tional was neeessary. They must have a royal eharter to compel the respeet of adjoining colonies and to give the force of authority to sueh laws as they might enact for their own government.
Early in the year 1643, Roger Williams was sent over to the Mother Country on this business, and in March of the following year he secured a eharter liberal in its provisions and in every respeet satis- factory to himself and to those whom he represented. He returned in the following September, bringing this charter with him, but for various reasons it was not adopted until thirty-two months later. The first general assembly convened at Portsmouth on the Island of Ac- quidneck. This was in fact. as well as in name, a general assembly,
'Town Papers.
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not a convention of delegates merely, but composed of all the inhab- itants of all the towns so far as these could be indueed to be present, a majority of whom really were present to participate in the delibera- tions and give weight to the conclusions reached.1
Under this charter was enacted a eode of laws which had been previously prepared and which proved to be in the highest degree "suitable to the nature and constitution of the place." Its evident purpose was to repress rather than to punish crime. In this it was far in advance of the age that produced it. Its humane spirit was in marked contrast with that vindietiveness whiel pervaded so many criminal codes of that period. Its manner was kindly, setting forth in terse and eogent preambles the unhappy consequences of crime, both to the perpetrator and to society at large, and urging men by that love which they should have for them- selves to restrain from its commission. If some of the definitions presented are not so full nor so exaet as those of professional writers on eriminal law, the meaning is always elear and unmistakable. Its composition was evidently the work of an honest man, who never stopped to quibble, and who adhered closely to the rule which he preseribed to himself in the matter of written contraets, expressing his thought "in as few words and as plain form, and as easy to be under- stood as may be." Possibly this code at some points erred on the side of merey, as has been suggested by high legal authority, but in every case it recognized the fact so often overlooked, that the man guilty of crime has yet some rights which law abiding members of society are bound to respeet.2
It provided that one charged with high treason should be brought before the next general assembly, and if there found guilty should then be sent to England to be further tried and dealt with aceording to the laws of that country where the penalty was, as it continued to be until 1814, as follows: The condemned man was drawn in a hurdle to the place of execution with a rope around his neek, hanged, eut down while yet alive, disemboweled while in the full possession of his senses, his intestines burned before his eyes, his still beating heart torn out and burned in the same fire, his body quartered and his head set up on London bridge, or in some other public plaee. It will be remem- bered that this savage penalty was not devised by the people of Rhode Island, but by the highest legal authorities of the Mother Country, and that there was no power on this side of the Atlantie competent to modify in any wise its method or conditions.
With respect to petty treason the law of old England was re-enaeted, the penalty of death by hanging or by burning and the forfeiture of goods to the state of course remaining unehanged.
1Arnold's Rhode Island, vol. i, 201.
2Judge W. R. Staples on the Code of 1647.
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The servant who should assault his master was to be imprisoned in the house of correction for a period of six months, or until his master should declare himself satisfied. The son who should assault his parent might suffer confinement in the house of correction for a period of twelve months, or until the parent was satisfied. This does not seem very severe when we remember that in Plymouth, Massachusetts Bay, and New Haven colonies the "Smiting" of father or mother was made a capital crime to be punished with death.
The goods of a suicide were to be forfeited to the state. For murder and manslaughter the penalty was death, and in the case of murder a forfeiture of goods also to the amount of the costs incurred by the colony in bringing the murderer to justice. But the taking of life by an infant, by a natural fool, or by an insane person, subjected the homicide to no penalty whatever. It was wisely judged that a knowl- edge of right and wrong and the right use of one's mental faculties were necessary that the deed done, whatever its nature, might be a felony.
Witchcraft was forbidden under pain of death. It is to be noted, however, that the enactment which forbids all commerce with Satan and his angels is not defended in the code, as were other enactments which involved the death penalty. Can it be that the author of this code had in his time proceeded so far as to doubt the reality of those pretended dealings with Satan in which all others implicitly believed ? In that day no legislature would have dared to do in respect to witch- craft less than was done at Portsmouth.
Burglary was deemed worthy of death, except when the culprit was found to be under fourteen years old, or when he was so poor as to be impelled to his deed by extreme hunger ; in these cases the offense became larceny and the law was satisfied with a minor infliction.
Robbery was made a felony of death, and in case it should appear that the officers did not use proper diligence in pursuing the fugitive robber, the town or colony might be made to satisfy the victim for his loss. Arson was also a capital crime.
Rioting was to be punished by fine and imprisonment. So, too, was assault and battery; and in addition the person assaulted might recover for any loss of time or injury to health that he sustained. For stealing that whose value was less than twelve pence, on the first offense the culprit must be "severely whipped and made to serve in the house of correction until the party or owner be satisfied two-fold for what he had stolen ; and for the second time he shall be branded in the hand and serve in the house of correction until the party be satis- fied two-fold for what he has stolen, and the colony four-fold as much." In 1718 the law against theft was so amended that should the culprit prove unable to make the restitution required, he might be sold by the sheriff for a term of years extended enough to raise the needed
28-3
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sum. Fifty years later this enactment was still in force. In the newspapers of those days are to be found many advertisements of impecunious thieves to be sold at auction in which the physical quali- ties and working value of the convict are set forth in words not unlike those employed to describe a horse that is offered for sale in the same columns. Trespassers were liable for damage done by themselves, by their servants, and by their cattle, in some cases as much as treble damages being allowed. Persons guilty of forgery and kindred of- fenses were to be fined, imprisoned, and made to satisfy the defrauded party. The penalties for sexual immoralities and for unnatural crimes were those at that time in force in England. Perjurers were to be fined, "and disenabled either to bear office or to give testimony in a court of record until the colony released them;" or if they could not pay their fines they were to be "imprisoned in the house of correction till these be wrought out, or else set in the pillory in some open place and have their ears nailed thereto." No man was required to swear if his conscience forbade him to give or to take a legal oath. In this case a "solemn profession" would have all the force of an oath, and to falsify this would involve all the penalty of false swearing. An insol- vent debtor could not be treated as a criminal, as at a later day he was often treated; it being expressly forbidden that he "be cast into prison, there to languish to no man's advantage." One convicted of drunkenness must pay five shillings "into the hands of the overseer for the use of the poor within one week after his conviction," and in case he refused to pay or was unable to do so, he must be sent to the stocks and there remain for the space of six hours. For a second offense he must forfeit ten shillings to the overseer, as before, and give bonds in the sum of ten pounds to keep sober in future.
The existence of any crime not specified in the code was expressly denied, and any act not therein forbidden was allowed. No other laws were regarded as "conformable to the nature and constitution of the place." The code ends in these words, "These are the laws that concern all men, and these are the penalties for the transgression there- of, which by common consent are ratified and established throughout the whole colony : and otherwise than this what is herein forbidden, all men may walk as their consciences persuade them, every one in the name of his God: and let the saints of the Most High walk in this colony without molestation in the name of Jehovah, their God, forever and forever !"
The capital offenses named in this code are treason, murder, man- slaughter, burglary, robbery, witchcraft, rape and crimes against nature.
Some minor changes were made in the first code while the charter of 1643 continued in force. Three years after its adoption, it was en- acted that the victim of an unjust and untruthful indictment, who
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should be found not guilty in the court having jurisdiction, might recover of the complainant any costs to which he had been subjected, with damages; and a complainant who had sworn falsely might be set in the stocks and fined the sum of twenty shillings. Five years later this act was so amended that upon the rendering of a verdict of not guilty the colony was required to pay the expenses of the defendant, and the complainant became liable to a suit for slander. If such provisions were in force to-day, we may safely say that the volume of criminal business in our courts would be sensibly diminished, and the interests of justice would not seriously suffer.
Adultery which by the code of 1647 had been left to the action of the laws of England, that is of the English Ecclesiastical Courts, was in 1655 made punishable by whipping for the first offense, fifteen stripes inflicted in each of two towns and in successive weeks; for the second offense fifteen stripes inflicted in each of the four towns composing the colony, with a fine of twenty pounds. In framing a penalty for this crime, and for others that will be noted, the law makers of those days seemed to have thought it important that the offender should be degraded as much and as widely as possible, or perhaps they gave less thought to the measure of his degradation than to the deter- rent force which they supposed might be exerted upon the onlookers by the spectacle of his sufferings. It has taken a long time for us to learn that nothing is ever gained by the needless disgrace of even a criminal, but rather that loss is incurred by society and the interests of law abiding citizens are brought into greater jeopardy-and we have not yet fully mastered the lesson. The deterrent force of penalty publicly inflicted continues till now to be much over-estimated among otherwise very intelligent people.
"A notorious and accustomed swearer and curser" was in the same year (1655) made liable upon the first complaint to be admonished by the magistrate, and upon the second complaint he might be fined five shillings or be set in the stocks.
Few changes in the criminal legislation of the colony were made from the adoption of the new charter until the public laws were re- vised and printed in the year 1718. Changes subsequently made as these related to capital punishment are elsewhere indicated. At this time forgery, the altering of records, and other acts of the same nature, were punishable with imprisonment and a heavy fine : no change being made until 1797, when counterfeiting bank bills and coin, and the having such spurious money in one's possession with the intent to pass the same as genuine were placed in the same category with forgery, and penalties were prescribed as follows: Standing in pillory, having both ears cropped, having a cheek branded with the letter C, imprison- ment not exceeding six years, and a fine not exceeding $4,000, all or any of which penalties might be inflicted upon a culprit at the discre-
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tion of the court. These penalties continued in force till the year 1838. By the law of 1718, on his first conviction of theft or larceny, the culprit was required to restore to the owner twice the value of the goods stolen, or to pay a fine, or to be whipped, at the discretion of the court. If a second time convicted of this offense, he must restore four times the value of the goods stolen, and pay to the colony a like sum, and be whipped or pay an additional finc. In cither casc if the thief were found unable to make the required restitution and to pay the fine imposed, he might at the discretion of the court be sold by the sheriff for a term of years, as many years as should be necessary to realize the sum required. In 1797 the penalty for theft was changed to a restoration of the value stolen, and a fine not exceeding $1,000, or imprisonment not exceeding two years, or a whipping not to exceed fifty stripes; and at the discretion of the court all of these penalties might be imposed upon a single conviction. No change was thereafter made until 1838.
In 1739 the penalty for adultery was made whipping not to exceed thirty-nine stripes, or a fine of ten pounds or both. About twenty years later it was enacted that one found guilty of this offense should in addition to the whipping named be made to sit on the gallows with a rope around his neck. The same penalty was affixed to polygamy. In 1797 a change was made by which the penalty for adultery became a fine of not more than $200, and imprisonment for not more than six months ; at the same time one guilty of polygamy was to be set on the gallows with a rope round his neck for an hour and to pay a fine not exceeding $1,000, or to be imprisoned at most two years ; and so the law rested until 1838.
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