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Columbia University Seminar in Early American History and Culture, May 10, 2005

Not for quotation or citation without author’s permission.

“‘No harm to kill Indians’: Equal Rights in a Time of War”

Richard D. Brown

University of Connecticut

In 1813 the United States was at war. Along its frontiers—north, south, east and west—British forces and Indian warriors, sometimes in concert, invaded United States territory and threatened attack. Though most American citizens lived in safety far from the battlefronts, when they read newspapers and talked with neighbors they knew their nation was at war. In New England particularly, “Mr. Madison’s war” provoked controversy, both principled and partisan. Some found it so detestable that their votes reinvigorated the waning Federalist Party. When His Majesty’s troops seized the United States Capitol and burned it in 1814, their old Mother Country humiliated Americans.

During the previous year newspapers across the United States had filled their pageumns with war news, both glorious successes like Oliver Hazard Perry’s victory on Lake Erie in September, and ignominious defeats like Chateaugay, Quebec, and Chrysler’s Farm, New York, in October and November 1813.[1] Most horrific of all was the “Great Slaughter by the Creeks” at Fort Mims in Alabama, where “the Indians entered . . . sat [sic] fire . . . [and] literally butchered” the Americans. According to an eyewitness, inside the fort the Indians burned a house so “old men, women and children, who were in an upper room, were burnt to death.”[2] Readers throughout the United States shuddered at such atrocities.

Close to the fighting along the New York-New England Canadian, the terror felt by white citizens put Indian lives at risk. One Indian who feared “he should be considered as hostile to his native country and tribe” was Nicholas John Crevay (or Creway), a Penobscot, who traded across the United States-Canadian border.[3] With hostilities destroying his livelihood and threatening his life, Crevay obtained a “passport” from a New Hampshire militia officer so that he and his wife, Sally—one of Quebec’s St. François Indians—could move to safety far from the frontier. Accordingly, in the autumn of 1813 the Crevays made their way into Massachusetts, and in October they stopped at Stoneham, a small town about 250 miles south of the Canadian border, barely ten miles north of Boston. Here they erected a one-room dwelling or “hut,” on the public land surrounding “a beautiful pond in the south part of the town, called Spot Pond, filled with pure water.”[4] If the Canadian border was quiet the next spring, the Crevays could return north and resume their usual way of life.

But that did not happen. Three days before New England’s Thanksgiving, on November 23 around ten o’clock at night, while the Crevays were “lying upon their bed of hemlock boughs,” some person or persons fired six times into their shelter. Though this Indian married couple was so distant from the battlefront that they could not possibly “be considered as hostile” to the United States, both husband and wife were shot. Sally Crevay would recover from her lacerations but, after suffering “the most excruciating tortures” for six days, Nicholas John Crevay “died of his wounds.”[5] Stunned by this “unheard of and shocking massacre,”[6] the people of Stoneham and surrounding towns wondered who could have perpetrated this “horrid and atrocious murder.”[7]

Local talk rapidly identified four men— Samuel Angier, Alpheus Livermore, Mark Packard, and John Winch, all workers at Ebenezer and Thomas Odiorne’s nail factory in Malden, two miles downstream from Spot Pond. Though the authorities acted promptly, Mark Packard fled before they could arrest and hold him with the others in the state’s jail in Cambridge. So on December 3, four days after Crevay’s death, when the Middlesex County grand jury indicted the four “labourers” for the crime, the state held only three prisoners. According to Solicitor General Daniel Davis’s indictment, the four had used muskets “loaded and charged with gunpowder and iron nails . . . feloniously, willfully and of their malice aforethought, . . . [to] kill and murder, against the peace of the Commonwealth.”[8] Regardless of massacres Indians might perpetrate on the frontier, and no matter that the United States was at war, Massachusetts made no mention of Crevay’s Indian identity; it was officially shocked by this brutal crime. The Solicitor General himself would prosecute the defendants vigorously before the Supreme Judicial Court.

But although respectable citizens voiced outrage, the outcome of the trial of four (now three) white men—all Yankees—was uncertain. In all of New England no white man had been convicted for the murder of an Indian since 1676, one hundred thirty-seven years in the past.[9] Even if some or all of the defendants were in fact guilty, the evidence in court might be too sketchy to persuade Yankee jurymen that any of the prisoners was guilty beyond reasonable doubt. And if prejudice towards wayfaring Indians operated in the minds of these taxpaying voters, the prosecutor might find it especially difficult to convict the jury’s fellow citizens of a hanging crime. Solicitor General Davis could make the wheels of justice turn, but no one could say whether justice would be done for Nicholas John Crevay, Sally, his wife, or the four nail workers.

The assault on the Crevays, the prosecution of Angier, Livermore, Packard, and Winch, and the question of punishment raised critical questions about equal justice in the early republic. Though in 1776 the new nation proclaimed officially, “all men are created equal,” and Massachusetts abolished slavery within a decade, in 1813 slavery flourished in most of the south and was only gradually fading out in the north.[10] For African Americans, Indians, and people of mixed race, equality—social, cultural, economic or political—was scarcely imaginable. [11] Yet though hostile feelings toward Indians might be common, no responsible citizen could condone murder. The right to live was fundamental. As a result, the proceedings against Angier, Livermore, Packard and Winch for the murder of Nicholas John Crevay tested whether the actual life of an Indian man could be valued equally with the lives of others, especially in wartime.

Facts on the ground swiftly demonstrated the imperfect character of criminal justice. One defendant absconded even before the grand jury returned the indictment on December 3, 1813. Packard’s flight seemed prima facie evidence of guilt, and his absence complicated questions about the culpability of the others. The case was tangled further when, in order to allow Winch’s wife, Hepzibah, to testify in defense of Angier, the judges ruled that Winch’s trial must be separated from that of Angier and Livermore. As a result, Angier and Livermore would go first before the bar of justice; and Winch would stand trial only after the jury had rendered judgment in their case. Before any trial began, four defendants had been reduced to three, and those three prisoners would be tried in two separate proceedings.[12]

Before trial, early republican newspapers seldom reported criminal events, so it is not surprising that printed notice of the Crevay murder appeared only after the verdict. “We avoided saying a word previous to their trial,” proclaimed the Boston Patriot, which identified Crevay as Indian, “but the cause of humanity and the character of our country are too much concerned to cover over an atrocious deed of this nature.”[13] Earlier, when the Boston printers David Watson, Jr., and T. G. Bangs had learned of the case they saw it stirred exceptional interest, so they arranged to print a transcript from “minutes taken at the trial.” The commercial opportunity presented by the trial of local white men for the “Murder of Nicholas John Crevay, an Indian,” led them to produce a dense 50-page pamphlet, which they promptly advertised in Boston and Worcester for 25 cents.[14]

The actual trial of Alpheus Livermore and Samuel Angier was unremarkable from a legal or procedural standpoint. Held on Wednesday, December 15, 1813, it began around nine in the morning and ended at “a late hour in the evening.”[15] Spending one full day on a capital case was commonplace. In all, thirteen witnesses testified on the events surrounding the crime: a physician; a militia officer expert on guns; three neighbors of the Crevays; five nail factory workers; one owner of the nail factory; the keeper of a shop where nail workers gathered to drink; and John Winch’s wife, Hepzibah, in whose house Samuel Angier boarded. One eyewitness to the crime, Sally Crevay, was not called to testify, presumably because she lay severely wounded and was expected to die within a few days.[16] Neither Angier nor Livermore testified because courtroom rules disqualified defendants in capital cases from testifying owing to their presumed temptation to swear falsely in their own defense.

The prosecutor began by laying out a circumstantial account of the crime. According to the press report of the trial, which emphasized the victim’s Indian identity, Crevay was “one of the Penobscot tribe of friendly Indians,” who “with his squaw, had placed his wigwam near the Spot Pond in Stoneham.”[17] Solicitor General Davis explained that he “had rendered himself obnoxious to the people in the vicinity by repeated instance of ill conduct.” Indeed on the day of the murder Crevay “was found in a state of intoxication at Malden, where he was severely chastised by some of the people in that neighborhood.”[18] According to one nail worker, “the Indians were very saucy. . . . They were drunk, and used ill language. . . . Because they could get no more rum . . . they threatened me, and called [militia] captain [Unite] Cox a damned rascal.”[19]

That evening another worker testified that Angier declared “The Devil take the Indians, or damn the Indians,” and invited him “to go and pull down the wigwam and burn the boards.”[20] Angier, Livermore, Packard, and Winch had wanted to “’’rout’ or drive off the Indians” for several days according to the Solicitor General, and on the evening of November 23, after sharing a quart of gin with co-workers, had “avowed to their fellow workmen, their intention of attacking the Indians.” Both Angier and Livermore were seen making their guns ready and preparing cartridges. Winch vowed “’that if he went to rout the Indians, he should fire nothing lighter than lead.’” After making these threats and asking others to join them, the defendants left the factory. When the time elapsed that it would have taken them to walk to Spot Pond, neighbors heard six shots in the vicinity of the Crevays’ dwelling.[21] The next morning Nicholas Crevay was found “mangled by a charge of iron nails of the largest and common size,” and “the Woman was shot through the body by one or more musket balls . . . [and] her clothes and skin were burnt by the [muzzle] blaze.”[22] No one testified to seeing Angier and Livermore do the deed, but both had spoken of such an attack, prepared for it openly, and an attack had been carried out—with fatal consequences. Their defense, that Livermore’s gun was later found to be rusty and so had not been fired, and Hepzibah Winch’s testimony that Angier had been home in bed at the time the guns were discharged, did not persuade the jury. After an hour’s deliberation, the twelve Yankee voters returned a guilty verdict against both men.[23]

The next day, December 16, 1813, their fellow nail worker, John Winch, stood trial—defended by the same attorneys, Samuel Hoar and Abner Rogers, with the addition of the prominent Boston lawyer, Harrison Gray Otis.[24] Winch’s jury was also largely the same. Though five jurors were new, Winch faced the same foreman and six other men who had decided Angier’s and Livermore’s guilt. Proceedings against Winch went quickly, but since no report of Winch’s trial was published, neither prosecution or defense arguments, nor any sworn testimony, survives. Witnesses in Angier and Livermore’s trial had seemingly implicated Winch equally, and the nail worker George Dexter had testified that Winch “declared if he went, [to rout the Indians] he would not fire anything lighter than lead.’”[25] But the jury found John Winch, a somewhat older married man, not guilty.[26] Perhaps Harrison Gray Otis’s skills as defense counsel—six years earlier he had won exoneration for the defendant in a celebrated murder case—and the alternate jurors made the difference.[27] It is also possible that the jurymen, having condemned two fellow citizens for the murder of a single Indian, refused to send a third man to the gallows.

Now, with Samuel Angier and Alpheus Livermore looking on, Solicitor General Davis moved that the two convicts be sentenced to death. Their penalty had never been in doubt since, as Justice Samuel Sewall announced, “the punishment by law appointed is Death!”[28] But Sewall did not simply pronounce sentence. He delivered a homily. After acknowledging the Crevays’ misbehavior, Sewall reinforced certain prejudices against Indians while confronting others by asserting Indians’ equal right to the protection of the law. His was a complicated message that reflected the ambiguous, narrowly conceived commitment to equal rights characteristic of Sewall’s class and region.

He began by assuming the hostility Crevay excited must be explained by “the supposition of offensive conduct on his part.” Directing some blame for the crime at the victim, he characterized Crevay in Indian stereotypes: “Untutored, wild, sunk in poverty and wretchedness, he had been especially in the drunken fits which were frequent with him, troublesome, unruly, saucy, as the witnesses expressed it, and disposed to irritate and abuse the people of the neighborhood.” Not only was Crevay ignorant, impoverished, and “wild,” the judge declared the Indian did not know and keep his place. That Crevay was “troublesome, unruly, saucy,” made him provocative; perhaps especially to free white workingmen whose self-discipline enabled them to know and keep their place. “Unhappily,” Sewall continued, “the resentment conceived against him, general as it was, was also accompanied with contempt, with a most erroneous prejudice and delusion.” Whereas the judge, like other respectable citizens, could condescend to tolerate a misbehaving Indian, “it seems to have been an opinion, adopted and talked over there, that Indians were not to be regarded as human beings; but were exposed as wild beasts or vermin, to be hunted and destroyed.”[29] This opinion Sewall pronounced “a most erroneous prejudice and delusion.”[30]