Grief, Crime, and Mercy in Colonial Charleston: The Story of Elizabeth McQueen, Part 2

Accused of having murdered her newborn child, Elizabeth McQueen was arrested and transported to urban Charleston to stand trial in 1747. Details gleaned from contemporary documents allow us to reconstruct many of the experiences this half-Creek woman endured, from incarceration within South Carolina’s incommodious prison under the care of a hot-tempered marshal, to the colony’s makeshift courtroom in a tavern where a relatively brief trial condemned her to an ignominious death.

“A Long Imprisonment”

At the end of last week’s episode, an unknown magistrate representing the long arm of English law in an unknown parish of colonial South Carolina arrested Elizabeth McQueen on suspicion of having feloniously concealed the death of her newborn child. From that outlying parish, the magistrate transported Elizabeth (or paid a sworn constable to transport her) by horse, by cart, by boat, or on foot to urban Charleston. At the end of their journey, the magistrate remanded her into the custody of the keeper of the provincial jail to await trial.

In 1747, South Carolina’s only jail was located near the northern edge of Charleston, on the east side of King Street (the only road leading in and out of town), about one hundred feet north of Moore Street (now called Horlbeck Alley).[1] On a suburban, half-acre lot stood a two-and-a-half-story building of unknown dimensions and unknown vintage, which the provincial government rented for the accommodation of felons, debtors, and persons awaiting trial and too poor to post bail.[2] The map known as the “Ichnography of Charles Town,” published in 1739, shows a large-ish rectangular structure located near the western edge of Lot No. 212 on the east side of King Street. This illustration might be based on an observation of the actual building, or it might represent a bit of artistic license.

Despite the lack of surviving details, we can reasonably conclude that the structure rented for use as a jail had been built at some earlier date as a commodious residence. As such, it would have included rectangular rooms with fireplaces, sash windows, and plastered walls, but no interior plumbing. The process of adapting it for use as a jail, which occurred around the year 1730, must have involved minimal changes to its structure and internal arrangement. Surviving legislative documents show that the government occasionally paid blacksmiths to fashion iron shackles and chains to tether prisoners to the walls and floors, but the interior of the house was apparently not divided into strong cells and the windows apparently lacked iron bars. In the words of the colony’s chief jailor in 1747, South Carolina’s only prison was “a very weak and insufficient” building.[3]

The colony’s chief jailor was known as the provost marshal, an officer very similar to an English sheriff of that time. Unlike our modern conception of a sheriff, however, the provost marshal of colonial South Carolina did not patrol the community, pursue criminals, or investigate crimes. He and his deputies served legal writs, maintained prisoners awaiting trial, delivered them to court, and executed the judgments imposed by civil and criminal courts of law, including the sale of property and the whipping, branding, hanging, gibbeting, and burning of convicts.[4] The jail (commonly spelled “gaol” or “goal” in the eighteenth century) or prison, as it was sometimes called, was exclusively for white prisoners. Enslaved and free people of African descent were held at the Work House and tried at impromptu courts by white magistrates and freeholders.[5]

At the time of Elizabeth’s arrest in 1747, South Carolina’s provost marshal was twenty-six year-old Rawlins Lowndes (1721?–1800), who had lived and worked at the jail for more than a decade. His father, Charles Lowndes, had once been a prosperous planter who suffered a loss of both his fortune and hope of recovery. Arrested for debt and making domestic threats in 1736, the elder Mr. Lowndes was confined to jail in Charleston and there took his own life with a pistol to the head. Mrs. Ruth Lowndes, a native of St. Kitts in the West Indies, entrusted her two teenage sons to the care of the then-provost marshal, Robert Hall (died 1741), and left the colony. By 1738, seventeen-year-old Rawlins was acting as “deputy” to Marshal Hall, and succeeded to that office in October 1745.[6]

Marshal Lowndes wasn’t the only person running the jail. He had at least one white assistant, who was called the “jail keeper” or “turnkey,” and at least one enslaved male servant, who assisted the white turnkey in the physical handling of the prisoners. Under the marshal’s supervision, these men were responsible for the daily shackling and unshackling of the prisoners, admitting visitors on occasion, and maintaining order amidst the constant threat of chaos. The more mundane but necessary tasks such preparing and serving food, fetching water, emptying chamber pots, and cleaning up the inevitable accidents, fell to an unknown number of enslaved house servants who probably lived on the premises.[7]

Although Rawlins Lowndes is remembered today as a patriotic South Carolinian who briefly served as president of the independent state during the American Revolution (1778–79), in the 1740s he was an over-worked young man with anger-management issues. The office of provost marshal did not include a fixed salary, and the marshal was expected to derive a comfortable income from the fees he charged for performing various tasks. Owning to legislative changes in the manner of serving legal writs, however, the marshal’s income plummeted in the late 1730s and 1740s, and he was obliged to economize by residing within the jail he supervised.[8] In short, young Mr. Lowndes had a stressful job that bound him to care of unsavory characters within the site of his father’s suicide. It was little surprise, therefore, that he occasionally vented his frustration on his guests.

In June 1746, eight prisoners in the jail were so terrified by their incarceration that they petitioned the governor of South Carolina for relief. They complained of savage beatings with a cane and a cowhide at the hands of Marshal Lowndes, arbitrary harassment and threats, and of receiving sparse rations of rotten food that “dogs would hardly touch.” Some of the men were confined to a dark attic space that was “hot as a stove.” They also complained about being put in irons by the jail keeper’s enslaved assistant, a black man whose physical dominion over the white prisoners they considered an unwarranted humiliation.

Governor James Glen and his council of advisors listened to the prisoners’ complaints and then invited young Mr. Lowndes to defend himself. The marshal confessed that he had indeed beaten and whipped several prisoners while they were chained to the walls and to the floor, but he blamed the victims for having repeatedly tested his patience, insulted him, and provoked him to violence. The house used as the provincial jail was not secure and ill-suited for the purposes of incarceration. If the marshals were “afraid of doing their duty,” said Lowndes, “the jayl [sic; was] liable to be broke every night.” Governor Glen politely chided young Mr. Lowndes for his indiscrete misbehavior and bid him henceforth to refrain from “venting his passion and rage on his prisoners.”[9]

Being too poor to post bail and secure her freedom, Elizabeth was obliged to remain in jail until her trial in late October or early November 1747. The precise time of her arrest and the duration of her incarceration is unknown. In her petition to the governor, written in early November 1747, Elizabeth simply stated that she had “sufferd [sic] many hardships dureing [sic] a long imprisonment.” The duration might have been as short as a few weeks, or as long as seven months.

For most of the colonial era (1701 through 1767), South Carolina criminal court, the Court of General Sessions, convened in Charleston only twice a year, on the third Wednesday of March and again on the third Wednesday of October. At each term, the court summoned both grand- and petit-jurors, indicted a number of defendants, and tried a series of cases in succession. The court session continued as long as there were prisoners awaiting trial, which process might take several weeks. Based on this court calendar, we can conclude that Elizabeth McQueen was arrested and transported to the jail in Charleston sometime after the beginning of the spring court session of 1747, which commenced on Wednesday, March 18th. The criminal court then reconvened on Wednesday, October 21st, by which time Elizabeth had already suffered “many hardships” in the jail.

South Carolina’s provincial jail in 1747 was an awful place where poor “abandoned wretches” were routinely confined in the same room with hardened “thieves and murderers.”[10] Owing to a paucity of surviving colonial-era criminal court records, however, we don’t know how many other people were incarcerated along with Elizabeth McQueen at that time. The provost marshal routinely arrested various men and women who were being sued for bad debts, but the duration of their incarceration was usually brief and not necessarily tied to the calendar of the Court of Commons Pleas (civil court). We know the identity of just one man who was also in jail for several months during the autumn of 1747. John Collins or Collings was an Englishman who was captured at sea that August and brought to jail in Charleston. He had been employed as a decoy by a French privateer cruising along the Virginia coastline, approaching English merchant ships in a friendly manner and then suddenly taking command of the unsuspecting vessels with a foreign crew. Whether or not Elizabeth had any contact with John Collins is unknown, but the rogue sailor was a brazen, troublesome character who will return later in this story.[11]

I’d like to believe that the provost marshal kept the male and female prisoners segregated in different parts of the jail house, but perhaps that’s just wishful thinking on my part. In truth, we’ll never know the degrees of liberty and danger Elizabeth might have encountered during her incarceration. As in contemporary English prisons, inmates in the Charleston jail could pay a small fee each day to have the jail keeper use his key to release them temporarily from their shackles (hence the name “turnkey”). In this manner, the more affluent prisoners could stretch their legs and move about the house, while the poorest inmates, like Elizabeth McQueen, might have spent the majority of their time in irons. The provost marshal probably gave minimal thought to the comfort of his guests, but one prisoner’s complaint in 1746 mentioned that at least he had a pillow on which to rest his head at night.

At his discretion, the provost marshal or his deputy allowed visitors to enter the jail house and circulate among the inmates. These guests included spouses, parents, clergymen, and attorneys, but there were no separate facilities for their private conversations and, perhaps, intimate embraces. In fact, there was little privacy of any kind in the jail. We can imagine that the prisoners must have been well acquainted with the sad or violent stories of each other’s respective crimes, not to mention their personal habits and bodily functions.

We don’t know if anyone visited Elizabeth McQueen in the Charleston jail, or whether she met a friendly face or a kind voice at any point during the months of her “long imprisonment.” We can be certain, however, that her experience was unpleasant and degrading. In short, the manner of incarceration that Elizabeth and other prisoners endured in colonial-era Charleston was physically uncomfortable, if not downright painful, and almost certainly damaging to the human psyche.

The Courtroom and Trial

According to its customary semi-annual schedule, South Carolina’s sole court of criminal jurisdiction commenced in Charleston on the morning of Wednesday, October 21st, 1747. Although we frequently refer to this institution as the “Court of General Sessions,” its proper name, borrowed from English precedent, was “the Court of General Sessions of the Peace, Oyer and Terminer, Assize and General Gaol [jail] Delivery.” It was, in a literal sense, an opportunity for the sheriff or provost marshal to deliver to court all the prisoners in his custody and to present each for his or her respective trial.

I haven’t yet found any evidence of how the provost marshal and his staff transported their prisoners in colonial times, but I suspect that they followed a logistical procedure much like today’s sheriff’s deputies assigned to transport duty. They secure each prisoner with handcuffs, tether them to each other with some sort of chain, and transport them from jail as a group. Once at the courthouse, the group of prisoners is held in a waiting area and are individually detached for his or her respective arraignment and trial. Since the distance from the jail to the courtroom in 1747 was approximately four-tenths of a mile, or 2,300 feet, the provost marshal might have chained the prisoners together in a column and marched them, under guard of course, to the place of their trial.

At the time of Elizabeth McQueen’s story, the only courtroom in South Carolina was a rectangular “long room” located within a large tavern at the northeast corner of Broad and Church Streets. This tavern, which operated from at least the 1720s through the summer of 1796, was actually a complex of several interconnected structures known by a succession of different names over the years as its lease changed from one proprietor to another. Several historical markers at the site now identify it as the location of Shepheard’s Tavern, but Charles Shepheard was the proprietor (not the owner) of that facility for only a dozen years, from early 1734 until his retirement in the autumn of 1746. The courtroom within this tavern was the same multi-purpose space in which audiences witnessed the first plays acted in public in South Carolina in 1735, and heard the first opera performed in the English colonies of North America in 1736.[12] At the time of Elizabeth’s McQueen’s trial in the autumn of 1747, the premises was under the management of Thomas Blythe, who took over the tavern in the autumn of 1746 and held the lease until October 1750. During that time, it was known as “Mr. Blythe’s House” or “Mr. Blythe’s Corner in Broad Street.”[13]

Once inside the tavern complex, Elizabeth and the other prisoners probably waited in a side room, still under guard, until each was called into the courtroom proper. Although no written record of Elizabeth’s trial or any other South Carolina criminal trial of this era survives today, we can reconstruct the sequence of events by following the typical outline of colonial-American criminal court procedure, which followed traditional English precedents. You might recall that I described a similar process back in Episode No. 92, when we talked about the Charleston Pirate Trials of 1718. The following reconstruction is a bit truncated, but my purpose is simply to lead you through the process that Elizabeth might have witnessed. I’m going to introduce a few quotations as well, which I have adapted from the printed transcript of the 1718 pirate trials in an effort to give you a sense of the courtroom language of that day.

The fall session of criminal court commenced on the morning of October 21st, when the chief justice of South Carolina ordered the Clerk of the Crown to call the court to order. Actually, the chief justice was on vacation at that moment. Benjamin Whitaker (1698–1753), a seasoned English lawyer, was at home in England during the trial of Elizabeth McQueen. The 1747 court sessions were adjudicated by the three assistant justices of South Carolina, all physicians appointed by the governor on account of their advanced educations and meritorious service to the colony: Dr. Thomas Dale (1700–1750, appointed in 1734), Dr. William Bull Jr. (1710–1791, appointed in 1740), and Dr. John Lining (1708–1760; appointed in 1744).[14] As senior assistant judge, Dr. Dale would have led the proceedings to the best of his learned abilities.

The first order of business was to impanel a grand jury—a group of two dozen white men summoned by legal writs to sit in judgment of their peers. After these men had assembled, probably in a separate room within Mr. Blythe’s tavern, the Clerk of the Crown, James Wedderburn, called the room to order. Judge Dale probably delivered a speech instructing the members of the grand jury, and then the clerk began issuing to them a series of written and oral indictments against each of the prisoners in turn.[15] Depending on the number of defendants and the complexity of their cases, this process could go on for many hours, or even days.

At some point, the clerk delivered to the grand jury a bill of indictment against Elizabeth McQueen. The document would have stated that on or about such a day at such a place, the said Elizabeth McQueen was charged with having murdered her bastard child and then concealed its death, which actions being contrary to the statute of the twenty-first year of King James the First, chapter twenty-seven, “An Act to Prevent the Murthering of Bastard Children” (1623), her alleged crime was deemed a felony punishable by death. After hearing a brief description of the charges and evidence related to this case, the members of the grand jury discussed the matter and reached a decision. Their foreman informed the clerk that they had found a Billa vera, or true bill, on the bill of indictment against Miss McQueen.

Having been formally indicted on a charge of murder, Elizabeth was brought from the holding room into the “long room” that hosted the provincial court. The rectangular space was divided by a low wooden railing or “bar” that separated the lawyers, jurymen, and judges from the audience, which probably included the families of both defendants and victims as well as curious onlookers. A bailiff led Elizabeth to the center of the space within the bar and ordered her to stand before the judges’ table to be arraigned. The clerk, Mr. Wedderburn, read aloud the text of the indictment. We can imagine that Elizabeth must have felt a bit overwhelmed by the unfamiliar surroundings. Judge Dale asked her how she plead to the charge against her. Without the benefit of defense counsel, which was quite rare at that time, and surrounded by strangers, Elizabeth must have confused and terrified. Did she plead guilty or not guilty to the charge leveled against her, asked the judge. “Not guilty, sir,” was probably her reply. 

Without further documentary evidence, we don’t know if Elizbeth’s trial commenced immediately after her arraignment, or was put off for several days while the grand jury and court worked through its full slate of indictments and commenced other trials. Let’s assume, for the moment, that her trial proceeded directly after she entered her plea. The clerk would have ordered the bailiff to place Elizabeth in the dock, a spot adjacent to the bar and surrounded by a low, three-sided railing in which defendants stood and heard the charges against them. The petit jury, a subset of twelve men from the grand jury, were called over and seated within the bar. The clerk invited the defendant to challenge any of the members of the jury: “You the prisoner at the bar: These good men that were last called, and have here appeared, are those that shall pass between our sovereign Lord the King and you, upon your life and death; therefore if you will challenge them or any of them as they come to the Book to be sworn, and before they are sworn, you may, and you shall be heard.”

The clerk called and qualified a series of jurymen in turn, but we don’t know if Elizabeth challenged the inclusion of any of these men for any reason. When the full complement of twelve jurors had been seated, the clerk addressed the jury: “You gentlemen of the jury that are sworn, look upon the prisoner, and hearken to her charge.” The clerk then read aloud the indictment against Elizabeth. “Upon this indictment she has been arraigned: Upon her arraignment she has pleaded Not Guilty; and for her trial has put herself upon God and her country, which country you are. Your charge is to inquire whether she is guilty of the felony of which she stands indicted, in manner and form as she stands indicted, or not guilty. . . . And now hear your evidence.”

The prosecution, representing the King and Crown of Great Britain, now stepped into the picture. The case against Elizabeth McQueen was presented to the jury by James Wright (1716–1785), a thirty-one year-old English lawyer who held the title Attorney General of South Carolina. Although a young man, Mr. Wright held impeccable credentials and was the son of the late Chief Justice of South Carolina, Robert Wright (1666–1739). The son was a talented man on the rise, and would later become the last colonial governor of Georgia, but few, if any, in Charleston knew that James Wright was once a “bastard” himself, born out of wedlock. His parents had married when James was eight years old, in 1724, immediately after the death of his father’s legal wife and immediately before the newlyweds decamped to South Carolina with their seven children in 1725.[16]

Attorney General James Wright commenced the case against Elizabeth McQueen with the typical formal language of the courtroom: “May it please your Honours, and you gentlemen of the jury,” etcetera, etcetera. He explained the nature of the law applicable in this case—the 1623 English statute, in force in South Carolina since 1712, enacted to punish “lewd women” for the “murthering of bastard children.” He then provided a brief summary of the King’s evidence against the young half-Creek defendant. Miss McQueen stood indicted of felony murder, a crime which English law of that era rewarded with a sentence of death by hanging. At the conclusion of his opening statement, Mr. Wright said to the jury, “We shall now call our witnesses, who will relate to you the evidence of the crime committed by the prisoner at the bar.”

The clerk then called the first witness, or “evidence,” who came to the bar and was sworn to give truthful testimony. Those who came to court to speak against Elizabeth McQueen might have included such people as the neighbor or neighbors who first spoke with her after she emerged from giving birth alone in the woods, and the person or persons who went into the woods and discovered the body of Elizabeth’s dead baby. Damning as their testimony might have been, these witnesses apparently did not portray the defendant as a malicious woman. Even the magistrate or “justice of the peace” who arrested Elizabeth and brought her to jail appeared in court to speak in her favor. A later judicial report (which we’ll discuss next week) stated “the majestrate [sic] who committed her and the people with whom she had lived for several years past”—perhaps the same people who gave testimony of Elizabeth’s alleged crime—“gave her a very favourable [sic] character as to the innocence and sobriety of her life before this mellancholly [sic] and unhappy affair.”

Questions posed by the attorney general framed the testimony of each of the witnesses in turn, but Mr. Wright was not the only interrogator. It was not uncommon at this time for judges to also ask questions from the bench, and to interrupt or prod the prosecution whenever they felt so inclined. At the end of each witness’s testimony, the clerk would have asked Elizabeth if she had any questions for the witness or “evidence.” There was no cross-examination of witnesses or any sort of defense counsel at this time. We can imagine that Elizabeth was probably feeling overwhelmed by the experience, and might have been confused by the harsh words spoke against her. If she had no questions for each witness, she would have replied to the clerk as many poor defendants did, with a simple, “No, sir.”

At the end of the testimony from witness and questions from the prosecution, senior judge Dr. Thomas Dale addressed Elizabeth directly and summarized the evidence against her. He then asked, “now what evidences have you to come in on your behalf, or what have you to say in your defense? Now is your time to speak what you have to say.” Mr. Wedderburn, the clerk, probably prompted Elizabeth to speak aloud to the court. If she did speak, we have no record of her self-defense. The prosecuting attorney, James Wright, would have asked Elizabeth a series of direct questions to give her an opportunity to refute the testimony of those who had already given evidence. If they felt so inclined, the three assistant judges might have asked her questions as well.

In her own defense, Elizabeth might have admitted she was uneducated, “poor, and half Indian.” Her solitary journey into the woods to give birth, had been “the custom of the Indians,” and was not designed to mask the crime of which she had been accused. “To the best of [her] belief,” she said, her baby was born dead, and she did not know that English law required the presence of witnesses at the birth of children on the colonial frontier.

Attorney General Wright then began his closing statement: “May it please your Honours, and you the gentlemen of the jury, the evidences have plainly proved that the prisoner at the bar” did commit the heinous crime with which she stands charged, etcetera, “so, I think her guilt is plainly proved.” The senior judge, Dr. Thomas Dale, speaking directly to the jury, would have then summarized the King’s case against Elizabeth McQueen and charged the twelve white men with the task of rendering a verdict. Part of this speech would have included a summary of the English statute she had allegedly transgressed. In the eyes of the English law in force in South Carolina at that time, an unwed mother was by default a “lewd woman,” like a prostitute, and her child was legally considered a “bastard.” The circumstances of Elizabeth’s case, in which she had been the only witness to the birth and death of her bastard child, seemed to match the intent and meaning of the 1623 law in question. Even William Blackstone, the preeminent eighteenth-century commentator on English law, stated simply that in the absence of a witness, a woman’s act of concealing the death and burial of her infant child was sufficient evidence that she had committed murder.[17]

Having received their instructions, the jury of twelve white men might have retired to a separate room or, following contemporary custom with simple cases, they might have remained in their seats and discussed the case among themselves. From an objective, legal point of view, the matter was quite plain. The girl was not married, and her child was legally a bastard. No one had witnessed the birth and death of the child, which the mother admitted she had concealed. At that time, these simple facts met the legal definition of murder. It didn’t matter whether the jurymen sympathized with Elizabeth’s character or acknowledged the cultural differences of her Native American heritage. They had little choice but to pronounce her guilty.

After the jury’s verdict was read aloud to the court and confirmed by their unanimous affirmation, Elizabeth’s trial came to a grim conclusion. We don’t know if the court proceeded to sentence her immediately thereafter, or if the provost marshal took Elizabeth by the arm and whisked her out of the room. Perhaps she returned to an adjoining room crowded with other prisoners awaiting their trials. Perhaps she was taken back to the jail to await a designated sentencing day, as was done in later generations of the local Court of General Sessions. For our purposes of summarizing her story, let’s assume that the court proceeded to sentence Elizabeth immediately after the jury pronounced its verdict.

Although each of the three assistant judges sitting on the bench in 1747 had received a very limited legal education, the facts of the case and the construction of the law left little room for doubt or compassion. The defendant was found guilty of felony murder, for which English law prescribed a sentence of death by hanging. Senior judge, Thomas Dale, would have asked the young, half-Creek woman if she could articulate any reason why the court should not reward her actions with a judgment of death. Elizabeth’s words, if she managed to speak at all, do not survive. Perhaps she was too frightened and overwhelmed with emotion to respond. The clerk then called for silence while the court pronounced its sentence on the defendant.

Judge Dale probably began his final speech with bit of the customary formal preaching about the serious nature of the crime of murder, and the Biblical justifications for imposing the sentence of death on those found guilty. Murder was a heinous sin that merited the most severe punishment in this earthly sphere, but the condemned were not beyond repentance and the hope of salvation in the next life. Borrowing a few stock concluding phrases from the published texts of other English trials of this era, we can imagine that senior judge, Dr. Thomas Dale, stated aloud words to this effect:

“I must now do my office as a judge. The sentence that the law hath appointed to pass upon you for your offence, and which this court doth therefore award, is that you, Elizabeth McQueen, shall go from hence to the place from whence you came [that is, the jail], and from thence to the place of execution, where you shall be hanged by the neck till you are dead. And the God of infinite mercy be merciful to your soul.”

Next week, we’ll return with Elizabeth McQueen to the jail and follow the final steps in her story. While awaiting her appointment with the hangman’s noose, Elizabeth explained her version of her alleged crime to a friend who helped her compose a petition for mercy. Reviewing the facts of her case and the nature of her crime, the governor and his advisors were drawn into the chasm between patriarchal law and the realities of a woman’s life on the colonial frontier.