USA > Rhode Island > Providence County > Providence > State of Rhode Island and Providence Plantations at the end of the century : a history, Volume 3 > Part 47
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Perjury and the subornation of perjury were until 1838 punishable with standing four hours in the stocks, or a fine not exceeding $1,000, or imprisonment not exceeding three years, or cropping, or branding, or all of these inflictions at the discretion of the court.
Between these dates (1787 and 1838) the penalty for fighting a duel or for challenging one to fight a ducl, was sitting an hour on the gal- lows, or imprisonment for a period not exceeding four years, or both. At the same time horse stealing was treated as a distinct offense, to be punished with a fine not greater than $1,000, imprisonment not to exceed three years and whipping not more than one hundred stripes. During a few years in the later part of this period, the burning of a house or other building under conditions such that the act could not be reckoned arson under the common law, was punishable by a fine of not more than $5,000, and imprisonment not more than five years; also by standing in the stocks, cropping, and branding.
As late as 1835, corporal punishment in some form was a part of the legal penalty which might be inflicted upon a person convicted of any one of fifteen separate and distinct offenses, namely: Forgery, coun-
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terfeiting, having in possession tools for making counterfeit money, having in possession counterfeit money, perjury, inciting to perjury, dueling, challenging to fight a duel, horse stealing, larceny, polygamy, setting fire to a building, and the crimes against nature. For many years, however, there had been a growing sentiment against the whipping post, the cat, the stocks, the pillory, and the branding iron, resulting at last in the abandonment of their use. They were sanctioned, indeed, by the statute, and in many cases they were made imperative; but when discretion could be exercised by the court, fines and imprisonments were generally substituted, and in those cases where no option was given and corporal punishment was required, the execution of this part of the sentence would be deferred till after the next session of the general assembly, which would almost uniformly remit or commute it.
In 1663 arson and rape were taken out of the list of capital crimes, and thereafter the crimes for which the life of the criminal might be forfeited remained unchanged for nearly sixty years. The number of these seems in our day large, but it was small by comparison with that of any sister colony, and very small by comparison with that of the mother country. The omissions are remarkable, no mention being made of atheism, as in Plymouth and Massachusetts Bay colonies ; or of blasphemy, idolatry, the rebellion of children against their parents, the cursing or smiting of parents by children sixteen years old or more, or of false witness, as in Plymouth, Massachusetts Bay, Connecticut and New Haven colonies ; or of defrauding the public treasury, Unitarianism, sacrilege, or refusing to attend public worship, as in Virginia.
Under the law forbidding high treason only two trials ever occurred in the colony, in cach of which the accused was acquitted. The first was the case of Hugh Bewit, commissioner of the town of Providence, against whom complaint was made by Samuel Gorton, an assistant for Warwick, "of treason against the power and authority of the State of England." He was arraigned at a special session of the court of com- missioners, and after a trial which continued three days he was de- clared "not guilty of treason.''1 In 1657 Mr. Roger Williams, then president of the colony, accused Mr. William Harris of treason, the charges being founded on words contained in a book written by Harris. He was required to give bonds for his good behavior in the sum of five hundred pounds ; but the case was not pressed to trial.2 No man ever was by the authorities of Rhode Island and Providence Plantations made liable to suffer the brutally cruel and revolting penalty of high treason, as this was at that time executed in England.
Quite as worthy of our notice is the fact that no man or woman ever
Staples's Annals, 86.
2Staples's Annals, 118.
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was arrested and prosecuted in this colony for the crime of witchcraft, though Providence was but a little more than forty miles from Boston at the time of the Salem delusion, when the jails of the Bay Colony were full of accused persons and twenty condemned witches were sent to the gallows, and when the old man, Giles Corey, was pressed to death for refusing to plead to this charge.
Exemption from the full penalty for burglary of children under fourteen years of age and of persons suffering the pangs of hunger evinces a humanity only too rarely manifested by legislators in that day. It may be that this exemption "savors more of humanity than of sound legislative discretion," as was observed by a learned judge of our Supreme Court half a century ago, but there are few at the present day who would think it right to hang for house breaking a child of tender years or an adult person who was starving on the day of his crime. The first instance where the sentence of death was pronounced against a convicted burglar occurred as late as Nov. 16, 1764, more than a century after this law was enacted. The man petitioned for a pardon and secured a reprieve of fourteen months in order that his case might be carried before the king with a recommendation to mercy, but a par- don was refused and he was hung on Easton's Beach in the Town of Newport. Except for military offenses, it is believed that no execu- tion has since taken place in Newport county.
The penalty prescribed for stubborn rebellion on the part of a child and for assault made by a child upon its parent, at the most twelve months in the house of correction and a shorter period of incarceration if the child should sooner satisfy the parent that he was become of a dutiful spirit, is more nearly commensurate with his offense than that he be hanged, as was provided in the laws of other New England colo- nies. And how much more reasonable it seems that a thief be impris- oned till he make restitution, even though he first be whipped, than that he be hanged by the neck till he is dead, as was done with at least one "persistent thief" at Boston in 1670, and as was so common in England at that time and many years later.
Two forms of crime which became very common in the colony de- serve special mention and at some length; these are counterfeiting and piracy.1
In 1710 when bills of credit were issued it was declared a felony in any way to deface or counterfeit these, the provisions of the act being extended so as to embrace bills of credit of other colonies and to provide for the extradition of counterfeiters. For a long time the courts were much occupied in the trial of counterfeiters. The penal- ties were severe but the deterrent effect of these penalties was not very great. In 1754 the penalty of death was pronounced against counter-
1See Arnold's Rhode Island.
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feiters. Two years later when Spanish dollars for the first time appeared in circulation, the ingenuity of knaves was at once turned to the imitation of this more reliable sort of currency. In the following year it was made a capital offense to counterfeit any coin or knowingly to put such counterfeit coin into circulation. Two or three years later Samuel Casey, lying in Kings county jail under sentence of death, with several others suffering for the same crime, was liberated by a mob of friends, so disguised that they could not be recognized by those who perhaps had met them daily for years. These all made their escape upon horses provided by their liberators, and although a reward of fifty pounds was offered for the discovery and apprehension of those who perpetrated the outrage, and as much more for the recapture of Casey, no one ever appeared to claim either sum and no one of the criminals was ever retaken.
When lotteries were established by the Continental Congress, the general assembly enacted the penalty of death against any who should counterfeit the tickets issued. In 1782 an act was passed to punish with death whoever should counterfeit the bills of the Bank of North America. This was the first paper money issued in the country and made redeemable in specie on presentation, and it must be protected. One would think these enactments severe enough to deter would-be offenders; but counterfeiting continued to be regarded with no great disfavor by a considerable element of society in this and in neighbor- ing colonies.
No mention of privateering in the colony is found previous to 1653, when the assembly met at Newport, commissioned Captain John Un- derhill, William Dyre and Edward Hull to proceed against the mer- chant marine of the Dutch and appointed a court of admiralty, consisting of the general officers and three jurors from each town, for the trial of all prizes that might be taken and brought into court; but a court of commissioners assembled in Providence the next month declared the action taken at Newport illegal, forbade the men to accept the commissions voted them and disfranchised whoever should recog- nize the validity of these commissions, until such persons should give satisfaction to the towns of Providence and Warwick. We need not suppose that those commissioners scrupled at privateering as a means of injuring an enemy and of getting to themselves riches, but only that they denied the authority of the Newport assembly, and that they regarded its action as rash and ill-considered in view of the colony's extreme weakness. Nevertheless the next spring another commission of reprisal was granted against the Dutch, and without formal remon- strance on the part of any in the colony.
When Governor Peleg Sandford was asked by the British Board of Trade concerning the matter he stated that "Our coast is little fre- quented, and not at all at this time, with privateers or pirates," seem-
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ing to imply that there was but little difference between the privateers and the pirates of that day. Probably this was the correct view. Later a crew of privatcers was brought into Newport, some of whom broke jail and laid a plot to murder Governor Sandford ; this plot was divulged by one of their number, who, being afraid that the others might kill him, was permitted, at his urgent request, to remain in Newport when they were sent to Virginia for trial. Why they were sent away to be tried does not appear, unless we are permitted, in view of events that followed, to conjecture that the ruling sentiment at Newport was not such as to insure for them a fair trial and a just verdict.
At the close of the year Mr. Sandford declined to serve longer as Governor, and Mr. William Coddington, whose feeling toward such culprits seems to have been less unfriendly than that of Mr. Sandford, was chosen in his stead. In a very few years what had been recognized as allowable between the vessels of nations at war with each other de- generated into actual piracy, and naval freebooters frequently resorted to the New England coasts, where a certain laxity of public sentiment favored their unlawful operations. A privateer commanded by Cap- tain Thomas Paine of Conanicut arrived in Newport, and the authori- ties, who were his neighbors and personal friends, took no steps toward her seizure. Deputy Collector Thatcher of Boston came to Newport and demanded of Governor Coddington aid in making her a prize, but met with a stubborn refusal. Captain Paine showed clearance papers from Jamaica, which the deputy collector declared a forgery, and again demanded the assistance of the Governor, and was again refused such assistance. He returned to Boston, secured from the Governor of Jamaica a statement that Paine's clearance papers from that island were forged, and sent this paper to Governor Coddington, who once again refused to do anything in the matter. There the case rested for awhile, to become at a later day the occasion of serious trouble to the colony. The attention of the home government being called to it orders were sent to Jamaica and to the New England colonies, direct- ing these to proceed against privateering and piracy, the close kinship of the two being again frankly recognized. These orders were pub- lished in Newport by beat of drum, and a corresponding act was passed by the general assembly, making it felony to serve under any foreign prince against a power at peace with England, and making all persons liable as accessories who should give aid or countenance in any way to those who might be adjudged as privateers or pirates. But little could be expected from the action of a law that was enacted under compul- sion, and that was at the same time sharply at variance with the well known sentiment and pecuniary interests of those whose duty it was to enforce its provisions. Privateers continued to be fitted out in Rhode Island, and to be manned by Rhode Island sea-
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men, whose undisguised purpose was to engage in the same illegal acts. To prevent this it was ordered that no commission be granted unless a bond in the sum of one thousand pounds were given that the powers conferred by the commission should not be exceeded by him to whom it was granted. But it was easy upon the high seas to violate the terms of such a bond, and when this had been done it was easy to escape detection and punishment.
This unlawful business was not without its dangers and its financial losses. The ship Foy, Captain John Dennis, carrying eighteen guns and one hundred and eighty men, fitted out by the merchants of New- port to annoy the commerce of Spain, sailed away and was never again heard from (1756). Two large ships fitted out and owned principally by Col. Godfrey Malbone, mounting twenty guns each, one commanded by Captain Brewer and the other by Captain Cranston, sailed from the same port, and it is supposed went down the next day, upwards of four hundred lives being lost and nearly two hundred wives being made widows by the disaster. It is authoritatively stated that nearly every merchant in Newport at one time had funds invested in priva- teering, and we cannot suppose that these had anything like a monop- oly of the business. It is safe to conclude that every town on the Narragansett waters having a port and a shipping interest was in- volved, when, as in 1759, nearly one-fifth of all the adult male popula- tion of the colony was serving on private armed ships,1 and we shall not go far wrong if we assume that nearly all pirates were first priva- teersmen.
Privateers clearing for Madagascar and the Red Sea on trading voyages, with roving commissions against the French, became openly pirates when peace was declared. All New England had a part in these enterprises, so did New York and the West Indies. No real effort for their suppression was made until it was ordered by the home gov- ernment. Then, under pressure, the Rhode Island general assembly passed an act ordering the arrest and trial of any person having in his possession foreign coin or merchandise ; such person must satisfactorily explain how he came by these or be regarded as himself a pirate or in collusion with pirates. Immediately in each town proclamation was made calling for the arrest of all suspected persons and warning people not to harbor such or to receive of their goods on pain of being regarded their accomplices and abettors. An address to the king was prepared, in which there was full confession of past remissness and mention made of the recently enacted statute against piracy, and a continuance of the royal favor humbly supplicated. The general assembly was alarmed. With this address Governor Cranston sent a letter to the Board of Trade, in which he stated that two men suspected of piracy had just been arrested and that they would be brought at 1 Arnold's Rhode Island, vol. ii, 217.
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once to trial. But all this did not prevent the surveyor-general of customs from charging the rulers of the colony with being in alliance with pirates and with being enriched from the proceeds of piracy, supporting this charge by reference to the fact that the deputy-gover- nor had issued a number of privateers' commissions after these had been refused by Governor Easton. The Board also demanded copies of all privateering papers issued, with a particular account of the trial of two priates, Munday and Cutler, recently before the court. Soon after came an order from the British cabinet to apprehend the notori- ous Captain Kidd should he appear in Rhode Island waters.
This man Kidd, who was an Englishman by birth, had commanded a privateer during the war with France, being commissioned with the title of admiral to act against pirates wherever found. He sailed from New York for the Red Sea in a government ship of thirty tons and a crew of sixty men, and himself immediately turned pirate. The change was slight. A fleet was sent to the East Indies to take him, but he escaped, came to the American coast and appeared in Rhode Island, where he had many influential friends, with whom he hoped to find a safe refuge. He also had a large number of friends in Massachusetts, and when his affairs became desperate, prominent persons financially interested with him, came to his assistance from New York and from Albany. By stratagem he was lured from his retreat of comparative safety in Rhode Island to Boston, where he was arrested, sent to Eng- land, and in the following year gibbeted for his crimes.
The work of extirpating piracy was exceedingly difficult. One Bradish and other pirates equally well known had been permitted to escape from Newport jail not long before. The evidence of connivance on all sides was abundant and a great inass of documents exists sup- porting the worst charges made against the rulers of the colony by the English officials. Among these documents is an order from the wife of Captain Kidd, who was with her husband in jail at Boston, upon the famous Captain Thomas Paine, before mentioned, for twenty-four ounces of gold, to be used for their sustenance while prisoners. The correspondence of Lord Bellomont is full of the names of Kidd's accomplices, who from time to time resorted to the waters of Rhode Island, and also of the names of well known citizens, who on such occasions harbored them. A sad picture of society in the colony is presented, scarcely better than was to be seen in New York, where Bellomont declared "The people have such an appetite for piracy that they are ready to rebell as often as the government puts the law in execution against it." It was even declared necessary to put the gov- ernors of Connecticut and Rhode Island under bonds of three thousand pounds each to enforce the law against piracy. Governor Cranston was denounced for "conniving at pirates and making Rhode Island their sanctuary." Lord Bellomont died and there is no record of any
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movement further against this entrenched crime till 1718, when the legislature authorized the governor to equip a force against pirates and ordered that any prizes taken should be given to the captors. It was further ordered that the pirates then in Newport jail should be held till the king should make known whether he would have them tried here or sent to England for trial.
Two piratical sloops sailing in company captured the ship Amster- dam, plundered and sunk her. Later they took a Virginia sloop, rifled her of whatever they wanted and let her go. The next day she fell in with the English sloop of war Greyhound and told of her capture and release. Four days later the Greyhound fell in with the pirates off the coast of Long Island, who at once attacked her, flying black and red flags at their mastheads. In the engagement which followed one of the piratical sloops was captured with her crew of thirty-six men and taken into Newport. There had been a reformation in the popular feeling during the last twenty-five years, or perhaps the necessity of a change of method had become apparent to officials. At any rate there was now no effort at temporizing. The general assembly ordered a military force to guard against a possible jail delivery. An admiralty court was summoned, such as guaranteed that the criminals should not escape justice. Their trial continued two days and resulted in the conviction of twenty-six men, all of whom were sentenced to be hanged (July, 1723). Their execution occurred on Gravelly Point, opposite the town, and their bodies were buried between high and low water mark on the shore of Goat Island.1 Their names indicate that they were of English extraction, and it is certain that Rhode Island, and perhaps Newport, was represented amongst them. Some fifteen years after four pirates were executed at Newport, and as late as 1760 two other seamen were convicted of piracy and executed on Easton's Beach.
A remarkable case of posthumous punishment occurred in 1706. A slave at Kingstown murdered the wife of his master under circum- stances of singular barbarity, and then drowned himself that he might not be taken alive. Two weeks later his body was found on the shore at Little Compton. It was impossible to hang him by the neck till he was dead. He had placed himself beyond the reach of human penalty. Something, however, must be done to deter others from the commission of a like crime. There was no law for it, but necessity is above law. Evidently the general assembly so reasoned when it ordered his head, legs, and arms to be cut off and hung up in some public place near Newport, and that his body be burned to ashes. This sentence was duly executed ; but that it accomplished its design would in the light of subsequent events be too much to assert.
1Bull's Memoirs of R. I.
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It is easy to over estimate the deterrent influence of severe penalty. This fact realized by thoughtful persons prompted many to doubt the efficacy of capital punishment and a movement was made at an early day for its abolishment. The number of crimes for which the death penalty was exacted was gradually reduced.
By the code of 1647, as was before noted, the death penalty was affixed to "high treason, petit treason, murder, manslaughter, witch- craft, burglary, robbery, arson, rape, and the crimes against nature." In a revision of the laws made in 1718, arson and rape were omitted from the list of capital crimes. Fifty years later witchcraft was also dropped. After thirty years more arson and rape were again included ; while treason and the crimes against nature were taken from the catalogue. From this date till 1838 there was no change in the law, though the execution of the death penalty was less frequent in each new decade: but in that year "imprisonment was substituted for the death penalty for all crimes except murder and arson," the latter being punishable by either imprisonment or death as the court should determine. The last man hanged in the state of Rhode Island was John Gordon, who was executed in 1844 for the murder of Amasa Sprague, a prominent citizen and manufacturer. There was a wide spread conviction, which has since increased in strength, that he had been convicted upon insufficient testimony ; and this conviction doubt- less stimulated the growing sentiment against capital punishment. The number of executions in the colony and state has never been large as compared with adjoining colonies and states, or in its ratio to the whole population. A very large majority of them were for murder. In the year 1852 capital punishment was abolished and life imprison- ment became the extreme penalty for crime in this state. Twenty years later the death penalty was re-enacted for murder committed by one at the time "under sentence of imprisonment for life." There has never yet been a man hanged under this enactment, no life prisoner having been found guilty of murder.
From time immemorial, with the landed aristocracy of England whipping had been a favorite mode of punishment for minor offenses committed by persons belonging to the lower orders in society. By the first settlers it was transplanted to this colony, as it was to each of the other colonies ; it was the penalty provided in the code of laws adopted by the first general assembly, as suited to drunkenness and other offenses for which a short term in jail would be now alloted, the alter- native being a fine. From the beginning two penalties were enforced for the same offense, a whipping for the very poor man, and a fine for his better conditioned neighbor, to whom a few shillings was not an impossible sum of money. The method of procedure in a case of drunkenness was by affidavits and affirmations presented to the town council. A typical case which occurred in Providence in 1649 may be
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