What of the Pirates? 

The following article describes the career of Thomas Pound as a pirate, and his subsequent capture and trial.  The actual capture is descried in more detail in the deposition of crew members of the sloop “Mary” captained by Samuel Pease, who died some days later from wounds received.  The trials were in January, 1689/90.  

Yarmouth Vanguard, Tuesday, November 7, 1989.

Three hundred years ago, in the year 1689, it was August 12th (o.s.), two captains from Boston, Thomas Pound and Thomas Hawkins, anchored their ketch, the "Mary", about four miles below Fort Royal, at Portland, Maine, which was under the command of Silvanus Davis. They sent ashore John Darby to fetch some water, as he was known to Commander Davis. He told him that the ketch was just back from Cape Sable, where she had been robbed by a privateer brigantine of some lead and most of their bread and water. He asked that a doctor be sent aboard to take care of its master, who had hurt his foot. But when Davis learned that there were on board a certain Captain Pound and a so-called Captain Hawkins, he suspected immediately that he was dealing with "rogues". In the meantime, a number of soldiers of the Fort had managed to escape and make their way to the ketch, bringing with them arms and clothing. Davis asked that the soldiers be sent back to the fort with the booty they had stolen. But Pound laughed at the request and not only refused to return any of the arms and clothing (which had been stolen from the sleeping soldiers) but he threatened to go into the harbor and cut out a sloop which was there anchored. 

There was about nothing true in what Darby told Davis. The truth is that Thomas Pound had asked Thomas Hawkins to take him, with his fishing vessel, to Nantasket, about ten nautical miles south-east of Boston. They had just left Boston, when Pound told Hawkins that his real purpose was to become a pirate and asked Hawkins to join with him, which he did. Pound was to take charge of the operations. It was on that same day that they seized the ketch "Mary", leaving their fishing vessel to its captain, Allen Chard. Two days later, they were in Casco Bay, when John Darby went ashore to fetch water and told his made-up story to Silvanus Davis. 

After helping himself to a calf and three sheep grazing on an island, Pound set sail for Cape Cod, and early on the morning of the 16th came upon the sloop "Good Speed," owned by David Larkin. As it was a larger vessel than the "Mary", she was taken over by the pirates, leaving to the captain the ketch and setting him free. Pound told him to tell the Governor of Boston that if he dared come up to get them, everyone of his men would die. While in Cape Cod, he sent some of the crew ashore, where they killed four young hogs. Shortly after, they plundered another vessel from Newburyport, north of Boston (on the New Hampshire border) with its twenty half-barrels of flour, sugar, rum and tobacco. 

Sailing out of Nantucket Sound, south of Cape Cod, the sloop ran into a stiff north-easter and was forced away to Virginia. Here, Pound managed to fetch some other spoil in the shape of an old sail, a piece of linen cloth and some dyes, before heading back towards Massachusetts. On their way, Hawkins noticed that they were being followed; but they finally outran their pursuer. 

Not long after they had reached Cape cod, Thomas Hawkins, who was getting tired of Pound's maneuvering, succeeded in making his escape. He met Captain Jacobus Loper, a Portuguese whaler, who was getting ready to sail for Boston. Here, Hawkins thought that he would be safe and escape the grip of the law. But instead Loper thought best to turn him over to the Boston authorities and soon Hawkins was shackled and safely lodged in prison. 

A few days later, the ketch "Mary", that the pirates had seized from Chard and that they had exchanged for the "Good Speed," was on its way, in search of the "Good Speed," which was at anchor in a cove, south-east of Cape Cod, where Pound was getting ready to sail to Curacao, the Dutch colony near the South American coast. As soon as the "Mary" reached the "Good Speed", Pound, in his surprise, climbed on deck with his sword flourishing in his hand and shouting: "Come you Dogs, and I will strike you presently". When he was told that if he would yield they would be given good quarter, he replied: "Ei yee Dogs, we will give you quarter by and by." But it was not long before Pound himself was hit by a bullet, when "several bones were taken out." There were casualties on both sides. The pirates were finally captured and brought to Boston, fourteen of them. This was taking place at about this time of the year, exactly 300 years ago. Most of them, including Pound and Hawkins, were found guilty of felony, piracy and murder. They were sentenced to be "hanged by the neck until they be dead." 

Jan. 27 (1690), the day that the hanging was to take place, Hawkins had already the rope around his neck practically, when someone ran to tell the hangman that the Governor had postponed the hanging. He was even completely pardoned, probably at the request of his sisters, who had married high ranking officers of the colony. Finally, all, except one, received their pardon, Pound included. Pound and Hawkins were then placed on the "Rose" to be sent into exile in England. 

Reaching Cape Sable, the "Rose" was intercepted by a French privateer of thirty guns, and a vigorous combat took place. The captain of the "Rose" was slain and several others; Hawkins finally died of his wounds. Somewhat bruised, the "Mary" was able to reach England, without any other incidents. 

And from the book “Murder and the Death Penalty in Massachusetts,” we have the following discussion about these events.

“Thirteen years after King Philip’s War the people of Boston ousted the colony’s royal governor during the Glorious Revolution.  Eager to restore law and order, the magistrates took aim at the gangs of pirates operating against local shipping.  Among other outlaws, Captain Thomas Pound, a crew of thirteen men, and the ship’s sailing master, Thomas Hawkins, were after quick, if prosaic, profits.  On August 8, 1689, Pound’s pirate band forcibly boarded the ketch Mary at anchor in Boston Harbor and seized its cargo of fish valued at 60 pounds.  About a week later, they assaulted the Merrimack while she lay at Homes Hole, Martha’s Vineyard, and seized the sloop Good Speed.  Satisfied with his plunder, Hawkins went ashore at Cape Cod while his mates sailed for the Elizabeth Islands and the possibility of more plunder.  On September 30, the governor and council commissioned Captain Samuel Pease to put to sea at once in an armed sloop with a crew of twenty to capture the pirates.  Four days later, Captain Pease discovered the pirates in Vineyard Sound.  During the fight that followed, Captain Pease was shot and killed. (He died several days later.) Eventually, however, the superior fire-power of the colony’s warship caused t pirates to surrender.  Hawkins and thirteen crewmen, including Thomas Johnston, as seaman identified as Pease’s assailant, were brought to Boston and indicted for murder and piracy, both capitol offenses.

Johnston was tried separately from his shipmates, who were arraigned and tried in two groups.  A jury, basing its decision n sworn testimony from Johnston’s captors and is shipmates, found Johnston guilty of murder.  Of the first five men tried for Pease’s Murder, four were found guilty and one, Edward Browne, was set free.  At an arraignment for Pound, Hawkins and the remaining seven crewmen, all but William Coward pleaded not guilty to the charge of Murder.  Coward refused to take the oath required of witnesses or to plead to the indictment.  He was sent back to prison and warned that he would be held in contempt if he did not comply with the Court’s order.  When Coward refused a second time to cooperate, the court entered a guilty pleay for him and ordered the trial to proceed.  A jury found all seven men guilty as charged and they were sentenced to death, bringing the total number to be hanged on Boston Common to fourteen. 

In fact, only Johnston was hanged.  The other convicted men successfully petitioned Governor Sir William Phips for clemency, a decision that caused Justice Samuel Sewall considerable anxiety.  Sewall had visited the men in jail, “prayed with them,” and signed a petition arguing a point of law for at least one of the convicted pirate-murderers.  Still he confided to his diary he felt pushed ito the decision by one of his colleagues on the bench, Justice Wait Winthrop.  “Some” on the court, Seweall wrote in January 1690, “thought Hawkins, because he goe out of the Combination before Pease was kill’d might live as well as Coward; so I rashly signed.”  The governor’s reprieve was delivered to Hawkins just before he was “to be turn’d off… (hanged), which gave great disgust to the People” Sewall added. 

It would appear that Governor Phips distinguished piracy (at least when carried out by local men) from murder and determined to punish only the latter crime, for which Johnston was found solely responsible.  Phips also may have been swayed by the court’s post-conviction argument for reversing the murder convictions of Hawkins and Coward.  Although a bit murky, this process sheds light on several aspects of colonial criminal procedure and on how the court arrived at its decisions.  First, in a search for the truth the criminal justice system relied heavily on oaths. It was assumed that God-fearing witnesses under oath told the truth and, likewise, that it made no sense for criminal defendants to be sworn because they would lie if guilty.  Aided by the fact there was no rule to encourage jurors to weigh the credibility of witnesses, the pirate-witnesses who testified against Johnston may well have been motivated primarily by self-interest.  It was to their benefit to name Johnston as the sole gunman responsible for murdering Pease.  At the same time, the pirate-witnesses gained nothing by naming Coward.  It seems reasonable to assume these same witnesses did not implicate Coward either in the murder or in the piracy and, therefore, the court overturned his conviction.  Since the court might have ordered Coward to be pressed for refusing to plea, his standing mute was a risky – though ultimately successful – strategy.  Second, it seems clear that at least Hawkins received invaluable and sophisticated legal advice.  Hawkins’s alibi that he was ashore on Cape Cod – that he had “withdrawn from the Combination” – before Captain Pease was murdered certainly saved his life.  Third, to arrive at its decision the justices engaged in a spirited internal post-conviction debate about the law.  There is no reason to think other controversial or complex cases did not provoke similar discussion within the court.  Fourth, the fact that Justice Sewall grumbled, but joined in the decision suggests that the court believed in consensus as a means of enhancing its power.  Finally, it is plain the court treated the death penalty with great care, tempering the severity of the law with mercy whenever uncertainty crept into the procedure.  

Trial juries provided another source of flexibility in the criminal justice system.  Grand juries normally brought an indictment for homicide whenever they considered a non-accidental death, leaving it to the jury to determine whether the crime was homicide, manslaughter, or “misadventure.”

 …………………

……from 1677 to 1692 juries tended increasingly to return a verdict of manslaughter rather than murder.  Only four men were convicted of homicide and hanged durig the last fifteen years of the Court of Assistants’ existence.

   The Salem witch trials, of course, spilled plenty of blood.  Before the colony’s new charter authorized the creation of the Superior Court of Judicature, a special Court of Oyer and Terminer had sent twenty-two people convicted of witchcraft to the gallows.”