“A Man May Quibble for His Life:” William Hardy and the Abolition of the Death Penalty in Massachusetts

Detail of the Execution of J. Frampton and Andrew Barton

Detail of the Execution of J. Frampton and Andrew Barton. (Photo: Wellcome Library)


In 1806, William Hardy, a poor African American laborer living in Boston, was indicted for the murder of an infant. Just one year earlier, the Massachusetts Supreme Judicial Court (SJC) had vowed to act “with that anxious regard for personal liberty and to prevent vexatious oppression.” Hardy was the first capital defendant to test the court’s republican promise. A black woman standing outside the jail when Hardy was being led to court was skeptical. “Har you Hardy,” she shouted, “you no lawyer – you fool!” In fact, the outcome of Hardy’s trial marked the beginning of a due process revolution that extended greater protection to capital defendants. It also opened the path that eventually led to the abolition of capital punishment in Massachusetts.

Recently appointed, Chief Justice Theophilus Parsons, presiding over his first capital trial, opened on a somber, cautionary note. Remember, he said, the “life of a fellow human being” was at stake. Each of his following rulings built on that republican principle. The court, Parsons stated, had adopted the ancient Massachusetts practice of appointing an attorney for a capital defendant (a right not adopted until the mid-19th century in England). Other rulings allowed a capital defendant the right to appeal, the presence of an attorney at a motion hearing, and to introduce evidence about his good character. Informally, the court recognized that the death penalty was qualitatively different from all other punishments and, therefore, required extraordinary procedural protection against error.

Hardy’s trial for the murder of Elizabeth Whelfry’s illegitimate child began on December 18, 1806. Following opening statements, Attorney General James Sullivan called two witnesses who stated they saw Hardy standing in the Charles River submerging an object he held by a chain. Hardy’s senior defense counsel, George Thatcher, wrung from the witnesses an admission that they were too far away to see what was tied to the chain Hardy held. Little else followed, save closing statements and the court’s instructions to the jury.

The jury found Hardy guilty. But, before Parsons could sentence him to death, defense attorney Thatcher pleaded for an arrest of judgment, claiming the court had made a procedural error. A single justice had arraigned Hardy, rather than the three or more justices called for in an 1805 statute. The court stayed Hardy’s sentence of death and scheduled argument on the motion during the court’s 1807 term. At the hearing, Thatcher argued that the procedural error had made the trial illegal and, therefore, the court “cannot proceed to pass sentence of death on William Hardy.” He had no desire to “frustrate public justice,” Thatcher added, but “in establishing a precedent for trials of capital offenses, the greatest caution should be used that it may not be quoted by evil men in future disastrous periods of the commonwealth to abridge the citizens of their rights.” Co-counsel George Blake buttressed Thatcher’s “death-is-different” approach. “The habits and prejudices of the country,” he said, argue for “strict construction” of capital punishment statutes. Attorney General Sullivan rebutted Hardy’s argument, but conceded, “If there is a doubt, the life of the prisoner ought not to be taken.”

Chief Justice Parsons ruled for the defense. Although Hardy had not objected in a timely manner to the court’s procedural error, a defendant’s objection “however small, is not in capital cases, taken away by any implied consent. If ever quibbling is at any time justifiable,” Parsons wrote, “certainly a man may quibble for his life.” The ruling marked the first time the court had reversed a defendant’s death sentence.

Attorney General Sullivan moved for a new trial on the same indictment. The court scheduled a motion hearing. Although Thatcher and Blake did not raise an objection to a new trial, it was the first time in the court’s history that defense counsel represented a capital defendant other than at trial. By allowing defense counsel to participate, the court had significantly increased the protection afforded a capital defendant. Hardy was acquitted at his new trial and immediately freed.

During the seventy-seven years following William Hardy’s trials, the Massachusetts Supreme Judicial Court slowly added to the due process rights that saved Hardy’s life. In 1984, the court ruled that no amount of protection could reconcile the death penalty with Article 26 of the Massachusetts constitution prohibiting “cruel or unusual punishment.” At that moment, it was evident that African Americans were at the center of the Supreme Judicial Court’s promise to protect the constitutional and legal rights of all citizens. Black History is American History indeed.

About the Author

Alan Rogers

Alan Rogers teaches U.S. Constitutional and Legal History at Boston College. His recent books include Murder and the Death Penalty in Massachusetts and The Child Cases: How America's Religious Exemption Laws Harm Children. On a sometimes happier note, he is a huge BC football fan.

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