J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

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Thursday, May 20, 2010

“Unusual and Excessive Rigour on the Part of the Magistrates”?

As I quoted yesterday, in 1989 Justice Antonin Scalia noted that British common law at the time of the U.S. Constitution allowed for the execution of children as young as age eight under particular circumstances. (Justice Clarence Thomas just pulled that down to age seven through careless quoting.) However, actual examples of such punishments are exceedingly rare.

Legal reference guides like the 1800 edition of The History of the Pleas of the Crown and William Blackstone’s Commentaries on the Laws of England noted that an eight- or nine-year-old named John Dean was hanged for burning barns—but that was in 1629. Boston hadn’t even been founded yet.

Closer to the time of the Constitution is a case from King’s Lynn, England. William Richards’s The History of Lynn, published in London in 1812, reported:

In 1708, according to one of our MS. accounts of that time, two children were hanged here for felony, one eleven, and the other but seven years of age; which if true, must indicate very early and shocking depravity in the sufferers, as well as unusual and excessive rigour on the part of the magistrates in the infliction of capital punishment.
A footnote adds:
The circumstance is thus stated in the MS.—“1708—Michael Hamond and his Sister, both children—one seven and the other eleven, were hanged for felony on the gallows out of South Gates [shown above].” What the particular crime was does not appear.
Richards mentioned the same incident in a timeline at the back of his book. It clearly struck him hard, and he even characterized the judges’ strictness as “unusual,” a word also used in the Eighth Amendment.

William White’s History, Gazetteer, and Directory of Norfolk, published in 1836, briefly mentions the execution of “Michael Hammond, and his sister,” at King’s Lynn in 1708. This book says nothing about their ages, and it’s unclear whether White got his information from Richards’s book or from an independent source.

Notably, Benjamin Mackerell’s 1738 History and Antiquities of the Flourishing Corporation of King’s-Lynn doesn’t mention any notable event thirty years before, though it does record the executions of other people before and after 1708. In addition, if either Hamond child was only seven, that death sentence would have set a precedent in English common law, but no eighteenth-century legal scholars appear to have noted it.

In a 1965 study of British justice, B. E. F. Knell stated that there was no evidence beyond Richards’s quotation to confirm that the Hamond children had actually been hanged—or even tried.

TOMORROW: A ten-year-old murderer from 1748.

4 comments:

AD said...

I'm very glad that you've taken up this topic. If capital punishment was not meted out to children that committed felonies or misdemeanors in colonial America then what was the punishment? I would be very surprised if it was a life sentence without possibility of parole.

J. L. Bell said...

British (and thus American) criminal justice hadn’t yet adopted the idea of extended prison terms as the primary form of punishment. Instead, children convicted of crimes were subject, like adults, to whippings and other physical punishment, to being bound out as laborers, and to being hanged.

The first person hanged in the Massachusetts Bay colony, in the mid-1600s, was a teenager caught having sex with livestock. I recall another such example in about 1704. And in such cases, officials tended to publicly kill the animal as well.

By the late 1700s, society was more lenient about sexual behavior. In addition, New England society had more opportunity for paid work, and more equality of wealth, than Britain, meaning there was less need, opportunity, and overall level of crime.

Still, standards were much harsher than we’d expect today. At the end of this series, I’ll get to a twelve-year-old New Englander hanged for murder. The Supreme Court was just discussing punishment for people under age eighteen; back in the 1700s, the age of full adulthood went it came to judicial punishment was fourteen.

J. L. Bell said...

A researcher named Michael Stern emailed me about the case of Ann and Michael Hamond, sharing evidence that (a) they were indeed executed in Lynn in 1708, but (b) they were in their late teens or older. There’s more detail on this site, and Stern’s preparing that work for publication now.

J. L. Bell said...

I repeated some false information above. In 1642 the Plymouth Colony hanged Thomas Granger for bestiality. That was the first execution of a teenager in what would become Massachusetts, but it wasn't the first hanging in Massachusetts Bay Colony.

The second execution for bestiailty that I remember was in 1674, as recorded in Judge Samuel Sewell's diary, note 1704 (though the diary goes that long). Again the person convicted was a teenager, Benjamin Gourd (or Goad or Gude) of Roxbury.