The Origins of Capital Punishment in New Hampshire

© 2012 by Chris Benedetto, all rights reserved. The material on this website cannot be copied or reproduced without written consent from the author. Endnotes indicating sources may be found at the bottom corresponding to numbers in the text.

Today is sadly a most appropriate day to begin my new blog, as it marks the 273rd anniversary of the first capital executions in New Hampshire's history. What is even less well known is that on a cold winter's day like this one in 1739, two women were hanged together for committing the same crime: concealing the deaths of their illegitimate newborns.

But why did the first cases of capital punishment in New Hampshire’s history take place when the colony was over a century old?

 There is no simple explanation to this question, but examining the historical context leading up to these grisly events offers some clues. New Hampshire was not as puritanical as its neighbor Massachusetts, who had executed 135 people before New Hampshire had one. But beginning in the 1720s, there were signs of trouble on the horizon in the royal colony New Hampshire. An earthquake shattered the tranquil night of October 29, 1727, which ministers across New England, including Jabez Fitch of Portsmouth, interpreted as an omen of the “Wrath to come” if the populace did not engage in a “universal and constant Reformation.”   Then in 1735, communities across New Hampshire were devastated by a “Distemper in the throat,” possibly diphtheria, which resulted in the deaths of over one thousand people in the colony, taking a particularly devastating toll on youngsters.  In Portsmouth alone, over eighty children under the age of ten perished, and Jabez Fitch discussed the broader sociological and spiritual impact of this deadly sickness: “The great mortality that has been among children should make parents very sensible that they are uncertain comforts, and should quicken them to a faithful discharge of their duty towards their children. The loss of so many children, whom if had pleased God that they lived, might have built up many families, will be a great prevention of the growth and increase of the country; and ought therefore to be lookt upon as Frown of Providence upon the Land in general, as well as a sore Affliction to the Parents in particular.”(1)

            While it is often repeated that infant mortality rates were much higher in colonial America than in modern times, that certainly does not mean that a child’s life was valued any less. The poetry of Anne Bradstreet and the diary of Samuel Sewall are poignant examples of how beloved children were in the hearts and minds of colonial New Englanders. The survival of a healthy child sustained hope for the future of humanity. Indeed, when the life of every child was so fragile, the possibility that a mother might intentionally abandon or harm her healthy newborn was particularly heinous to the inhabitants of eighteenth-century New Hampshire. Tragically, the unforgiving laws and social norms of the colonial era left most women with little choice. It was an awful decision to have to make, but in the one words of one historian, “infanticide might have seemed a matter of survival.”(2)

Who were the women?

            Only three years after the diphtheria epidemic, Reverend Fitch and his community were outraged on the morning of August 11, 1739, when the body of a female newborn was found floating at the bottom of a well. Warrants were issued and “a Widow woman named Sarah Simpson who had been suspected some time before to have been with child, was apprehended and charged with being the mother of the child found in the well.”   According to one contemporary, Simpson was “about 27 years [born] in ye parish of Oyster River,” in Durham, New Hampshire and she was “put out young, and serv’d her apprenticeship in Portsmouth.” When she was questioned, Sarah denied that the baby in the well was hers, but then admitted she had recently given birth, and stunned provincial officials by leading them to the shallow grave where she had buried her baby’s body near the Piscataqua River.(3)

            Events took an unexpected turn the following day when Penelope Kenny, a twenty-year-old native of Limerick, Ireland serving in the household of Dr. Joseph Franklin, was interrogated by authorities who now suspected her of being the mother of the baby in the well. Not satisfied with her evasive answers, they unpleasantly forced Kenny to disrobe and be physically examined by “four or five skillful Women,” most likely midwives, “who reported that according to their Judgment she had been delivered of a Child within a week.” But Kenny still “would not give direct Answers to questions put to her,” and only after spending a night in the local jail did Penelope finally confess that she “alone delivered of a Male-Child alive the Wednesday Morning before.” Kenny then confessed that she “put it alive into a tub in her Master’s Cellar and then left it, till Friday-Night following, when she threw it into the River.”(4)

            Upon this damning evidence, Penelope and Sarah were each tried and  convicted by a jury of “twelve good and lawful men” for “feloniously concealing the death of an…infant bastard child” on August 30, 1739. According to one official, the trials of Simpson and Kenny were “long, tedious and attended with much trouble and difficulty,” and over thirty witnesses were summoned to testify, though their exact words have been lost. There was some uncertainty, however, concerning the extent of their crimes. Jabez Fitch remarked that Simpson and Kenny both “deny’d that they laid violent Hands on their children; one affirming that her Child was dead born ; and the other, that hers dy’d soon after it was born.” But for Fitch these claims were irrelevant because “both seem’d sensible of their Neglect of taking due care to preserve the Life of their Children: So that they tho’t themselves guilty of the Breach of the sixth Commandment by omission, if not by Commission.”(5)

            New Hampshire authorities, following their Puritan peers in Massachusetts, considered the women’s actions not only sexually deviant behavior, but also an affront to the existing social order that could not go unpunished. And it is very possible that memories of the “awful Calamity” that had claimed the lives of so many innocent children three years earlier made the deeds of Sarah Simpson and Penelope Kenny that much more appalling, and convinced Chief Justice Henry Sherburne and his colleagues to condemn both women to be hanged on November 21, 1739.  But in the days that followed this unprecedented sentence, Simpson and Kenny were “persuaded by some indiscreet persons who came to visit them, that their sentence was rigorous and unjust, and . . . they might obtain a reprieve so as to be finally executed from suffering.”  A petition was sent to Governor Jonathan Belcher, and on November 12, he signed an order that postponed the executions until December 27.(6)

           
Dueling Sermons

 The “mournful spectacle” that unfolded in Portsmouth in December 1739 reflected a communal ritual of execution practiced across New England from the seventeenth through the mid nineteenth-century, when public executions were banned. On the morning of December 27, Sarah Simpson was transported from the jail to the South Church, where Reverend William Shurtleff preached an “execution” sermon, while Penelope Kenny spent her dwindling hours at Queen’s Chapel perched on a hill across town listening to Reverend Arthur Browne, who had offered her spiritual guidance. This was possibly because Browne, like Kenny, was a native of Ireland and felt a connection with him.  Browne had served as the rector of King’s Chapel in Providence, Rhode Island for six years before moving north to Queen’s Chapel, the first Episcopal Church in Portsmouth, in 1736. (7)

            Two paradoxical themes emerge from these sermons. The ministers did not hesitate to use the example of condemned women to remind the entire community of the spiritual ignorance and sins of the flesh that could damn any soul. “May her untimely End influence you all,” warned Arthur Browne, “to lay fast hold on Instruction; may her Example and Sufferings answer the Intention of Law, and deter all viciously and wickedly disposed persons among you from incurring the like condemnation.” William Shurtleff took the opportunity to remind his parishioners that the “neglect and abuse of God’s Sabbaths (which the condemned person here present reflects upon with so much regret)…very often lead to Capital Crimes.” But just as the ministers portrayed Penelope Kenny and Sarah Simpson as criminals destined for eternal damnation, they also represented the young women as pitiful sinners who were eager to repent. William Shurtleff discussed the case of the “poor Prisoner” with “the tenderest Bowels of Compassion, and the deepest Concern of Soul,” and Arthur Browne asked his audience, “why should I at present upbraid or insult this poor Malefactor! She is convinced I trust of the heinousness of her Sins, and may her Preparation and Repentance avail her in the Day of the Lord.”(8) 

Final Words 

Accompanied by the ministers of Portsmouth, Sarah Simpson and Penelope Kenny were then escorted about a mile to the place of execution on the outskirts of town. This possibly was the site of a gallows which had been erected in 1718 in a field between the homes of William Cotton and Edward Cates, where it stood as an intimidating reminder to the locals of the power of the royal government. Although a fresh blanket of snow had shrouded the landscape the day before, “the execution of the said women drew together a vast concourse of people” and the “numerous spectators seem’d earnestly concern’d for them.” In the crowd was Samuel Lane, a young cordwainer who had traveled from Hampton to see “two women Hanged at the Bank.”  But Lane’s terse diary entry does not reveal his thoughts as he watched Sarah Simpson and Penelope Kenny utter their final words before Sherriff Eleazar Russell carried out his grisly task. By the time Simpson reached the macabre gathering, Jabez Fitch remarked that she had “discover’d an uncommon Composure of Mind, and gave very pertinent Answers to the Questions that were put to her.”  Sarah Simpson’s last words were captured by Reverend Fitch:

                            

After she came to the place of Execution, a Writing, (That was put into one of the Ministers Hands by the Way, said to be of her dictating and which she acknowledged to be so) was publickly read at her Desire; wherein she mentions several things that were Matter of Grief and Bitterness to her, as that she had been forgetful of GOD in her Childhood and Youth, and she pass’d away her early days in light and wicked Company: To which she ascribes it, that her riper Years had been a Course of more direct Rebellion against GOD; And she fires that Parents as well as Children would received Instruction from it. She also mourns that she had oice’d no more by the Opportunities she had had in some Families in which she liv’d, or been conversant, for some little Time after she was grown up; where the Worship of GOD was upheld, and where she had receiv’d many good and wholesome Instructions. And she mentions it with Regret that when she entered into the Marriage State, it was not with one that took care to maintain the Exercise of Family Religion  and advises all when they marry, to make it their great Care to marry in the LORD: She at the same Time expresses her Thankfulness to the Ministers that visited her, and that, as she express’d it, had so often carried her to the Throne of Grace, particularly to the two who had been most frequent in their Visits; And, declaring her Forgiveness of all the World, she signifies her own Hope, notwithstanding her great and manifold Sins, of obtaining Forgiveness and finding Mercy with God thro’ the Blood of JESUS CHRIST his Son.

When given her opportunity, Penelope Kenny spoke “a few words by the way of Warning to others, and the Rev. Mr. Fitch having then commended them both to the Mercy of God in Christ, she and the other were executed . . . and left us not without hopes of their being delivered from the second Death.”(9)

This depiction of  the Salem Witch Trials in 1692 evokes to what happened in Portsmouth in 1739

An Unsolved Mystery            

But long after the women’s bodies were cut down from the gallows and buried in unmarked graves, one mystery refused a decent burial. (10) If Sarah Simpson laid her poor infant to rest in a shallow grave and Penelope Kenny cast her nameless newborn into the churning waters of the Piscataqua River, then who was the mother of the dead child found in the well in August 1739? William Shurtleff was convinced “that there has been one among us thro’ whose means these Persons have been remarkably detected, that is equally & it may be more heinously guilty in the sight of GOD; and could I suppose the Person to be within Hearing, I would say, Don’t encourage yourself from your present impunity:  Be assur’d that though you are as yet concealed from Men, both you and your Crime are known to God.”   But the identity of that third woman who tossed a baby into the well in Portsmouth was apparently never discovered, and she took her secret to the silence of the grave. (11)

            An accidental archaeological discovery during the 1970s, however, shed light on the disposal of unwanted offspring in colonial America. While excavating an eighteenth-century brick privy in Philadelphia in 1973, archaeologists unexpectedly found among the assorted refuse the partial skeletal remains of two human newborns. The archaeologists determined that sometime during the second half of the eighteenth century, one or two women had given birth and “whatever the circumstances, these infants were apparently unwanted, probably illegitimate. The mother (or mothers) either murdered them…or at least concealed their births and deaths in order to avoid stigma, threat of prosecution, loss of reputation…or at least the responsibility of mothering a bastard child.” (12)

            What is certain, however, is that the tragic events of 1739 in Portsmouth made a profound impression on all who witnessed them and marked a loss of innocence in New Hampshire that could never be restored. A new era of crime and punishment had been ushered in, and Jabez Fitch was confident that “the sad end of these women may be a Warning to all others, to take heed of the Sin of Uncleanness,” echoing sentiments expressed by the famous Puritan minister Cotton Mather more than forty years earlier.   William Shurtleff fervently hoped that “nothing of the like Nature might again happen among us!”(13) 
But as I will discuss in the future, they were sadly mistaken...

Endnotes 

^{1. A Discourse Shewing What regard we ought to have to the Awful Work of Divine Providence in the Earthquake, which happen’d the Night ofr the 29th of October, 1727 By Jabez Fitch…(Boston: B. Green, 1728) 8;  An Account of the numbers that have died of the Distemper in the Throat, Within the Province of New Hampshire…July 26, 1736 (Boston: 1736) 13, and also Jeremy Belknap, The History of New Hampshire…Volume II (Dover: 1812) 97; Religious Education of Children Recommended, In a Sermon Preach’d in the Church of Portsmouth December 27th 1739…by Arthur Browne, A.M. (Boston: 1740), 13.} 

^{2. Peter Hoffer and N.E.H. Hull, Murdering Mothers: Infanticide in England and New England 1558-1803 (New York: NYU Press, 1984) 115.} 

  

^{3. The identity of Sarah Simpson’s deceased husband remains a mystery. On September 6, 1733 Peter Simpson “of London” and a Sarah Duley of Portsmouth were married and less than a year later their son Nicholas was born. That same year, 1734, Sarah was also “received” into the covenant of the South Church in Portsmouth,}New England Historical and Geneaological Register ^{25 (1871): 120, and also Register  81 (1927): 451. However, there is no conclusive way to confirm that the Sarah Simpson executed in 1739 was the same woman, since no death or probate record for Peter Simpson has been found.}

^{4. Boston News-Letter, 17 August 1739. Penelope Kenny’s Irish origins are also mentioned in the diary of Joseph Tate, who described her as “a servant girl about 20 years of age [born] in or near Limerick in Ireland,” Register 74 (1920): 130.}

^{5. New Hampshire Province Court Records, Microfilm Series, Case No. 20062;  The Faith and Prayer of a Dying Malefactor: A Sermon Preach’d December 27, 1739…by William Shurtleff…to which is annexed a brief narrative concerning the said criminals and a Preface by the Reverence Mr. Fitch (Boston: J. Draper, 1740) i-iii.}

^{6. New Hampshire Province Court Records, Microfilm Series, Case No. 20062.} 

^{7. Mary Cochrane Rogers, Glimpses of An Old Social Capital…As Illustrated By The Life of The Reverend Arthur Browne And His Circle (Boston: 1923) 4-10.}

^{8. The Faith and Prayer of a Dying Malefactor, 29; Religious Education of Children Recommended, 13.} 

^{9. The Faith and Prayer of a Dying Malefactor, 29.} 

^{10. It is believed that the their bodies were buried nearby the gallows, which was located in “the triangular ground formed by the junction of South and Middle Roads” in Portsmouth, see Helen Pearson, Vignettes of Portsmouth…(Boston: The Steson Press, 1913) 40.}

^{11. The Faith and Prayer of a Dying Malefactor, 20-21.} 

^{12. Sharon Ann Burnston, “Babies in the Well: An Insight into Deviant Behavior in Eighteenth-Century Philadelphia,” In Remembrance: Archaeology and Death, David Poirier and Nicholas Bellantoni eds. (London: Bergin and Garvey, 1997) 51-65.}

^{13. The Faith and Prayer of a Dying Malefactor, 20-21, 29.}