At the time Lizzie Borden faced the death penalty for the murder of her folks in August, 1892—for hanging was the mandatory penalty for murder in Massachusetts--the conviction of a woman for murder was an idea so thoroughly foreign to Massachusetts jurisprudence that it is hard to find a prior example. To determine whether that state’s government executed any women since the debacle of the witchcraft trials exactly 200 years before Lizzie’s trial, one has to consult history books so old that the edges of the pages dissolve under the fingertips into a velvety dust.
As of 1893, the year of Miss Borden’s trial, Massachusetts had hanged only two women in the past 114 years. (Actually, they might have hanged Rachel Wall there in 1789, as some accounts give the location of Wall’s execution as Massachusetts, but she was a murderous pirate, a category of its own.)
In both of these old cases, things went quite badly. The first botched execution was in 1778 when Bathsheba Spooner, the daughter of a prominent but unpopular judge, was put to death for murder. Bathsheba and her lover desired the death of her repulsive husband. Two British soldiers happened by with such services to offer.
Unluckily for Bathsheba, the Brits later bragged about their exploits. The trial lasted one day. Given her unfortunate name, Biblical parallels were easily drawn, and they set a quick date on which she’d be publicly hanged in Worcester for her part in the affair.
Bathsheba Spooner pleaded her belly. There was considerable debate about, and examination of, same.
On one hand, her pregnancy, if true, explained her sudden need to kill old Joshua Spooner. On the other, the physical signs were apparently lacking. They decided she was lying. Bathseba immediately filed a petition to reverse the decision, stating that "I am absolutely certain of being in a pregnant state.... What I bear, and clearly perceive to be animated, is innocent of the faults of her who bears it, and has, I beg leave to say, a right to the existence which God hath begun to give it."
Her plea was denied, and they hanged Bathsheba with her co-conspirators.
Only then did they learn the devastating news that Bathsheba was, in fact, five months pregnant when the murderess and the innocent son she carried were executed. The authorities had violated one of the most ancient maxims of English and Roman law: quot praegnantis mulieris damnatae paena differatur, quoad pariat; or, if a capitally condemned woman is barely with child, she shall be executed, but if she is quick with child, execution shall be staid until she is delivered.
More than four decades passed before the state again decided to hang a woman--with even more disastrous results, as difficult as that is to imagine. In 1831, Mary Johnson, a 22-year-old servant girl, was convicted of slitting the throats of her elderly master and mistress while they lay in bed.
As they hanged her--yes, dear readers, this is the account: as she was being dropped, the actual murderer confessed to killing the old couple. So convincing was he that Mary was cut down. They set about reviving her, perhaps mindful of the tradition that says anyone who survives a hanging must be pardoned, guilty or not, but to the lasting horror of all, she was irretrievably dead.
Thus the Commonwealth had a shameful record of executing the innocent. Massachusetts’ long struggle with the death penalty had left a strong taint on capital punishment, which became not a deterrent to murder, but a deterrent to convicting a woman of murder, as some nineteenth-century acquittals showed.
So the officials overseeing justice in the Borden matter faced devilish questions. Did such deplorable precedents give women license to kill? Could the state ignore its past and convict the guilty?
Well, you know the answers.
General knowledge from years of Borden study
"Trial of Mrs. Spooner and Others," in American Criminal Trials, Volume II, by Peleg W. Chandler (Freeport, New York: Books For Libraries Press, 1970 reprint of the 1841-44 edition).
Seasonal Crimes, quoting a broadside on Mary Johnson in the Library of Congress collection
Murdered by His Wife: An Absorbing Tale of Crime and Punishment in Eighteenth-Century Massachusetts by Deborah Navas – An excellent account of Bathsheba Spooner’s life and death.
One of the best short essays about the Bathsheba Spooner case was written by Mark Vosburgh of the Standard-Times in New Bedford, Mass. It is saved here.