The English capital crime that's still on the books here, even though it's a remnant of our slave days and nobody's been tried for it since 1782

Recent weeks have seen the phrase "high crimes and misdemeanors" re-enter the public discourse. Turns out there are also "low crimes," one of which used to carry a particularly gruesome penalty in New England - and which is still listed as a capital offense in Massachusetts lawbooks even though it was used primarily as a way to punish slaves, such as a slave known only as Mark, whose tarred remains were kept on public display by the side of the road in Charlestown for more than 20 years.

If you look up the official Massachusetts definition of "murder," at MGL Chap. 265 §1, you'll find four specific reasons for which a person can be charged with that offense. Three are what you'd expect: Causing somebody's death with "deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life."

But the fourth reason? Petit treason - although the law doesn't define what that is. For that, we have to go to the history books.

English settlers brought the concept of petit treason over with them from the old country. In England, the legal system had two types of treason - "High" treason, or an offense against the sovereign grave enough to warrant death, and "petit" or "low" treason - which also warranted death, but which involved crimes of a lesser against his or her superior, if not quite the king.

In England, that ranged from killing a superior (who could be a church prelate, a master or, if you were a woman, a husband) and eventually extended to lesser crimes - theoretically, in England, somebody could be put to death for using an employer's official seal on a document.

In the colonies, at least in New England, the crime was limited to murder, although we kept the idea that a woman killing her husband had engaged in "petit treason."

What also distinguished petit treason from regular old murder was the punishment: Rather than just being led to a gallows to be hanged, men convicted of petit treason were dragged to the gallows and hanged and then could be "gibbetted" - their bodies put on public display (in England, the bodies could also be disemboweled and castrated, the heads were cut off and then they were carved into four pieces, i.e., quartered). The ladies got what was considered a more humane punishment - they were burned to death, although usually with a noose around their necks, which was pulled as the flames were set, so they would die quickly from hanging rather than suffering much from the fire.

Only two people were ever sentenced to death for petit treason in Massachusetts - two slaves, named Mark and Phillis, in 1755 in Charlestown.

According to an 1883 account by the Massachusetts Historical Society, the two were among several slaves belonging to John Codman, a sea captain and trader who lived in Charlestown, in an era in which slavery was legal in the colony (in fact, Massachusetts was the first colony to legalize slavery, in 1641, and only outlawed it in 1783).

Three of the most trusted of these, Mark, Phillis, and Phebe,—particularly Mark,—found the rigid discipline of their master unendurable, and, after setting fire to his workshop some six years before, hoping by the destruction of this building to so embarrass him that he would be obliged to sell them, they, in the year 1755, conspired to gain their end by poisoning him to death. ...

Mark ... professed to have read the Bible through, in order to find if, in any way, his master could be killed without inducing guilt, and had come to the conclusion that according to Scripture no sin would be committed if the act could be accomplished without bloodshed. It seems, moreover, to have been commonly believed by the negroes that a Mr. Salmon had been poisoned to death by one of his slaves, without discovery of the crime. So, application was made by Mark, first to Kerr, the servant of Dr. John Gibbons, and then to Robin, the servant of Dr. Wm. Clarke, at the North End of Boston, for poison from their masters' apothecary stores, which was to be administered by the two women.

They eventually obtained a supply of arsenic - which Mark procured after going over to Boston in a ferry to pick it up from Robin. They mixed about seven doses into drinks and some food served to Codman - specifically, they put it into his "barly Drink and into his Infusion [tea], and into his Chocalate, and into his Watergruel [watered down porridge]" - and he eventually keeled over and died.

They were unable to keep the plot secret and on July 2, 1755 - just one day after Codman's death - Mark was arrested. Phillis was arrested not long after - as was Robin.

A month later, a grand jury sitting in Cambridge formally charged the three with petit treason. In the indictment, Massachusetts Attorney General Edmund Trowbridge accused Phillis of "not having the Fear of God before her Eyes but of her Malice forethought contriving to deprive the said John Codman her said Master of his Life and him feloniously and Traiterously to kill and murder." Mark and Robin, the indictment continued, did "feloniously & traiterously advise & incite procure & abet the said Phillis to do and commit the said Treason & Murder aforesaid against the Peace of the said Lord the King his Crown and Dignity."

Mark and Phillis were convicted, and sentence of death was pronounced upon them in strict conformity to the common law of England. On the 6th of September, a warrant for their execution was issued, under the seal of the court, commanding Richard Foster, Sheriff of Middlesex, to perform the last office of the law, on the 18th of the same month; and upon this warrant the sheriff made return upon the day of the execution.

Phillis was buried somewhere. Mark's body, though, was coated in tar and then gibbetted - his body hung from chains on an iron stand at Charlestown Common - in what is now Somerville (the punishment was also used for people charged with piracy; their bodies would be hung on Nix's Mate, an island at the entrance to Boston Harbor).

Mark's remains were still there, 20 years later, when Paul Revere made his famous ride towards Lexington in 1775; in a letter, Revere wrote:

After I had passed Charlestown Neck, & got nearly opposite where Mark was hung in chains, I saw two men on Horse back, under a Tree. When I got near them, I discovered they were British officer. One tryed to git a head of Me, & the other to take me. I turned my Horse very quick, & Galloped towards Charlestown neck, and then pushed for the Medford Road.

In 1782, Priscilla Woodworth of Blandford was charged with petit treason for allegedly killing her husband, Nathaniel, by poisoning him with arsenic. She was, however, found not guilty.

Three years later, the state legislature repealed the distinction between petit treason and murder - meaning no more difference in how sentences were carried out. But what is now basically a historical footnote remains enshrined in state law.