Note 9 — THE TRIAL AND EXECUTION OF MARK AND PHILLIS, In 1755.

The law was uncertain; but Hale appears to be the safest authority. Wood, in his Institutes,—at the time of this trial the most recent and popular treatise upon the laws of England,—states that women were to be drawn, in petit treason; as, indeed, do most, if not all, succeeding writers. They follow Coke, 3 Inst. 211; but neither the statutes referred to, nor the case cited from 12 Ass. 30, by the latter, support his statement. The report runs thus: "Alice de W, qui fuit de l'age de xiij ans, fuit arse per judgment, pur ceo que el'avoit tue sa Maistres, & pur tant ceo fuit adjudge treason, &c.;" and it appears that the case turned upon the question of accountability, by reason of the tender age of the culprit. No mention of drawing is made in the judgment. Compare H.P.C., i. p. 382, and note, with Hawk. P.C., b. 2, ch. 48, § 6, and authorities there referred to, and Coke, ut supra. Also, see 4 Black. Comm. 204. It will have been noticed that though the judgment against Phillis was that she go to the place of execution, the warrant required that she be drawn thither. The practice of drawing, in such cases, would have been challenged, probably, if the cruelties anciently incident thereto had not become obsolete.