THE SENTENCE OF DEATH
The more attention one gives to the punishment of death,
the more he will be inclined to adopt the opinion of
Beccaria――that it might be disused.
JEREMY BENTHAM: “Theory of Legislation.”
I have long gone about with a conviction that Sir Henry Wotton was
right when he said that “hanging was the worst use man could be put
to.” Not that I think he ever thrashed out the pros and cons of the
matter in his mind, but being, as Dr. Ward says, a man of noble
purposes and high thoughts, whose qualities united into “the amalgam
of a true English gentleman,” he knew instinctively that the thing was
repellent to his nature, and therefore it followed that it was
economically unsound and morally wrong. Being a courtier, he pretended
that the sentiment was that of the Duke of Buckingham, and being a man
of humour he invested his Grace’s thought in an epigram. And for my
part, though the judgment is some three hundred years old it is the
last word on the subject. Dr. Johnson, who, whatever greater qualities
he possessed, was not a gentleman――or to be more accurate, perhaps,
was on occasion “no gentleman”――was wont to express himself wittily on
the subject of hanging, for, as he said, “Depend upon it, Sir, when a
man knows he is to be hanged in a fortnight it concentrates his mind
wonderfully.” In like manner, in the true conservative spirit, he
inveighed against the abolition of the good old days of Tyburn. “The
age is running mad after innovation; all the business of the world is
to be done in a new way; Tyburn itself is not safe from the fury of
innovation. No, Sir, (said he eagerly,) it is _not_ an improvement:
they object that the old method drew together a number of spectators.
Sir, executions are intended to draw spectators. If they do not draw
spectators they don’t answer their purpose. The old method was most
satisfactory to all parties; the publick was gratified by a
procession; the criminal was supported by it. Why is all this to be
swept away?”
Of course the old fellow was only pulling young Boswell’s leg. These
were not his real opinions at all. Thanks to Dr. Birkbeck Hill, one
can always study the varying philosophy of Dr. Johnson with his pen in
his hand, and Dr. Johnson with his tongue in his cheek.
Johnson, the man of letters, “the strong and noble man” in an essay in
the _Rambler_, gives us his real, earnest, sincere thoughts on the
sentence of death. “It may be observed that all but murderers have, at
their last hour, the common sensations of mankind pleading in their
favour. They who would rejoice at the correction of a thief are
shocked at the thought of destroying him. His crime shrinks to nothing
compared with his misery, and severity defeats itself by exciting
pity.”
In that last phrase it seems to me that the great man puts his finger
upon the real objections to the death sentence from the public point
of view. The pity that should be bestowed upon the victim is poured
out in muddy sentimentalism at the foot of the scaffold. The sentence
of death, “of dreadful things the most dreadful,” surrounds its victim
with a halo in the morbid, popular mind that blacks out the sense of
the crime and cruelty for which the murderer is to be punished.
It is curious how little interest is taken in the subject of the death
sentence to-day. On many a question of sociology the best that has yet
been said has been said many generations ago. When Cesare Bonesana
Marchese di Beccaria published his “Dei Delitti e delle Pene” in 1764
the world was thirsting to read what was to be said scientifically
about crime and punishment, and the book actually caused the abolition
of many death sentences in several European countries. For a book to
cause any reform whatever sounds to-day like a miracle.
And, indeed, it almost seems as though since the eighteenth century
the pendulum has swung back again towards the Old Testament view of
things. In this matter of capital punishment the modern authorities
are more disciples of Moses than of the Apostles. They cry out, “Eye
for eye, burning for burning, wound for wound, stripe for stripe;” yet
the student of Asiatic folk-lore might well remember that Cain was not
sentenced to death, but, on the contrary, was purposely protected from
execution.
That the death sentence is a deterrent is commonly said, yet the
evidence seems to me unconvincing. The fear of death is a weakness;
but, in fact, death is not a subject widely thought of. A murderer no
more contemplates death on the scaffold than he thinks of any other
form of death. As to the disgrace of such an end, that is more than
compensated for by the opportunity of bravery and display so dear to
criminal conceit. No sooner is a man condemned to death than the whole
attitude of the official mind changes towards him. He is treated with
exceptional humanity. His gaoler becomes full of charity towards him.
The clergyman assures him of divine forgiveness. He dies in the odour
of sanctity, with pious sentiments upon his lips. Time is not perhaps
necessary to repentance, but surely as a test of repentance, time is
of the essence.
That there is a real human sentiment against hanging comes out, I
think, in the odium and horror with which the actual hangman is
regarded. Mr. Marwood, of Horncastle――from whom as a boy I used to buy
shoe laces, which were regarded with religious awe by my class
mates――felt this very deeply. He was an amiable, kindly man, as I
remember. Indeed, why there should be any special prejudice against a
hangman if his office is so necessary and worthy, it is hard to
understand. The race is a tender-hearted one, if records may be
believed. Mr. James Berry, to whom Mr. Marwood handed over his rope
and pinions, tells us in that naïve and excellent autobiography of his
“Experiences of an Executioner,” that before his first execution, when
his dinner arrived consisting of “rice pudding, black currants,
chicken, vegetables, potatoes, bread and the usual teetotal beverages,
I tried to make the best of it, but all that I could do was to look at
it, as my appetite was gone.” Is not that even more convincing than
all the philosophy of Beccaria? The prisoner eats a good breakfast,
the hangman starves, the prisoner in the dock is calm and reasonable,
the judge breaks down and weeps. What mean these portents?
Some day it will dawn on rulers that it is not a wise example to the
mind of murderous tendency to deliberately do the very thing which the
State professes to regard with feelings of grief and indignation. When
a low-class ruffian runs amuck, shouting “I’ll swing for you!” and
murders his victim, he is proving the corollary of the Mosaic
proposition. If the law is to be a life for a life, it is fair for him
to take a life when he is ready to give his own in exchange. It is
rough, brutal logic, but not wholly fallacious.
And what will bring governments to a really grave consideration of the
subject is the increasing difficulty in obtaining a conviction for
murder, and the still greater difficulty in carrying out the sentence
afterwards. In the Habron case the sentimental public was right and
officialdom wrong, and the former saved a life. Since then the
sentimentalists back their opinion against officialdom on every
sentence that is pronounced. Scarcely any murderer outrages the public
mind so greatly but petitions are widely signed by the hysterical
against the fulfilment of the law. True we have abolished Tyburn and
the bellman of St. Sepulchre’s, and the apples and ginger-bread and
the fighting and bawling and gin drinking. No longer does Lord Tom
Noddy invite his friends to supper at the Magpie and Stump “to see a
man swing at the end of a string” in the morning sunrise. But have we
not something of the same degradation in the highly spiced, detailed
accounts of every moment of a murderer’s life from the day of the
crime, through the excitement of the chase, up to the dramatic
capture, and then along the close verbatim of the evidence until we
reach the grand _dénouement_ of the sentence of death. Some there are
still faithful to eighteenth-century tradition, huddling in the cold
streets round the gaol gates to watch the gaoler put up a notice of
the end, for the old black flag dear to this little band of stalwarts
has been hauled down, alas! for the last time. Of all the blessings of
the Education Acts none is taken greater advantage of, I should say,
than the privilege of reading the diligent and accurate reports of
murder trials in the Press of to-day. Personally, I prefer the ballads
and broadsides and last dying speeches and confessions of the older
race of criminals, but some of the picturesque articles of the
imaginative――or, as he prefers to be called, descriptive――reporter of
the more saffron-coloured Press have the true eighteenth-century
brush-mark, and I confess that they give me a momentary second-hand
thrill of horror quite acceptable to my coarser nature. I do not wish
to do these excellent writers any injury, but I am steadily hardening
in the opinion that they are the only persons in the community who
derive any benefit whatever from the death sentence, and we must
really run the risk of injuring their livelihood.
Personally, I never sat through murder trials unless I had a business
interest in them, nor to me are they――merely as trials――of greater
interest than many other trials. But the overhanging sentence of death
gives them a colour that stamps them very vividly in the memory.
What a curious drab, unentertaining drama was that of Mrs. Britland,
but for the sentence of death at the fall of the curtain.
Yet perhaps if Dumas had had the handling of this chapter he would
have spun you a wonderful and mysterious story out of the web of it.
Though I doubt after all if he would have deigned to write about such
a humble practitioner in the art of poisoning. He must have his most
noble Marquise de Brinvilliers and her elegant accomplice, Sainte
Croix, before he can transpose squalid crime into profitable romance.
Mary Ann Britland is a figure in Manchester history as being the only
woman ever hanged for murder in Strangeways Gaol. For myself, I think
that nothing could have saved her from the ultimate penalty of the
law, though I recognise that there are distinctions even among
evildoers, and that there was sense in the “bull” of the Irish
barrister when he was asked his opinion about the Maybrick case, and
said: “After all, you can’t expect an English Home Secretary to hang a
lady he might meet out at dinner afterwards.” The trial was
interesting to me as being the first murder trial I had ever sat
through, and the closing scenes of it, horrible as they were,
impressed me very strongly with the inadvisability of a Crown Court
sitting late into the night on the trial of prisoners, and went far to
convince me that capital punishment enshrined the wickedest criminal
in a veil of mystery behind which the crime itself and its victims
were too often lost sight of.
Mary Ann Britland was a factory operative about thirty-nine years old,
living with her husband and daughter in Turner Lane, Ashton. On March
9, 1896, her daughter died very suddenly. On May 3 her husband died
equally suddenly. She then went to live with some neighbours named Mr.
and Mrs. Dixon. She and Mr. Dixon had been on very friendly terms, and
the evidence showed that Mary Dixon, her friend’s wife, invited her to
her house out of compassion. On May 14 Mary Dixon died very suddenly.
Upon this the Ashton police began to bestir themselves. A post-mortem
was held on Mary Dixon, revealing the fact that she died of strychnine
poisoning. Mrs. Britland was arrested. The bodies of her daughter and
husband were exhumed, and the evidence showed that they, too, had died
of strychnine poisoning. Thomas Dixon was now arrested, and an inquiry
begun before the magistrates. Falkner Blair defended the woman, and
Byrne appeared for Dixon. There was little or no evidence against the
latter, and an eloquent speech by Byrne secured his discharge before
the magistrates. Although no doubt he was innocent, it was to this
piece of advocacy he probably owed his life, as unless a judge on the
trial had withdrawn his case from the jury on the ground that there
was no evidence against him it is almost certain he would have been
convicted, so hopeless is the position of a man whose only apology is
that the woman tempted him and he fell, when he comes before a
tribunal of twelve fellow-sinners. Dixon’s only chance would have been
a jury of women.
The trial came before Mr. Justice Cave in July of the same year.
Addison, Q.C., and Woodard prosecuted, and Blair and Byrne defended. I
had made a précis of the case for Blair at his request, and I took a
note for them during the trial. The case lasted two days, and at the
end of the second day Blair addressed the jury. The evidence was
overwhelming. The three deceased persons had been poisoned by
strychnine. Mrs. Britland had purchased “mouse powder” in sufficient
quantities to kill them all, and there was no evidence of any mice on
whom it could have been legitimately used. The case of the poisoning
of Mrs. Dixon was the one actually tried, but the deaths of the others
were proved to show “system” and rebut the defence of accident. Even
if there had not been sufficient evidence to secure a conviction, Mrs.
Britland had had many indiscreet conversations about “mouse powder”
and poisoning, and had been anxious to discover whether such poisoning
could be traced after death. Blair’s task seemed hopeless enough, but
he made an eloquent and cunning address to the jury.
It was one of those cases where anything like reasoned argument would
have been useless. The only chance for the advocate who loved his art
as Blair did was to endeavour to instil doubt into the receptive minds
of the jury, that by good hap the prisoner should gain the benefit of
it. This he did with great skill, touching lightly upon the
possibilities of accident or of poisoning by some other hands, or even
of self-administration. And in those days when the guilty one was safe
in the dock and could give no evidence, there was greater scope for
the art of advocacy――for is it not an art, as Master Izaak tells us,
to “deceive a trout with an artificial fly.” And Blair was a great
artist at the raising of haunting doubts, which followed the jury when
they retired to their inner room, so that he almost seemed to be the
thirteenth man on the jury, he and his doubts remained so present to
their anxious minds. And I remember no advocate who could handle a
hopeless case more cleverly within the honest rules of the game,
unless it be Sir Edward Clarke himself. The result was extraordinary.
Mr. Justice Cave summed up in a businesslike and sensible style,
expecting a conviction in a few minutes, and at twenty minutes to six
the jury retired. The judge waited some little time, but, as they did
not return, he went across to his lodgings, then in the same building,
and we went upstairs to the Bar mess. At a quarter to eight they
returned. The wretched prisoner was put up in the dock. The foreman
explained that they were not agreed. They handed a paper to the judge,
who told them to retire and consider the matter further.
Blair left the building and Byrne remained to see what happened. It
was well after 10 o’clock at night before they returned into court. I
suppose the clerk of assize knew that they had not agreed upon their
verdict, and for humane reasons did not send for the prisoner. Then
began a conversation between the judge and the foreman. The judge told
the jury that he must direct that they be taken to the hotel for the
night, and then said, “Is there any legal difficulty in which I can
assist you?”
“Only the paper I gave you, my lord.”
“Yes, but is there any legal difficulty in your way?”
To which the foreman replied, “Nothing, only that you have there.”
Upon which the judge again told them he must direct them to be taken
to the hotel.
There was a pause. No one had any doubt what the trouble of the jury
was. They wanted in their wrong-headed way to acquit Mrs. Britland
because they could not convict Mr. Dixon.
Cave thought for a moment, and then turning to the jury made a short
summing-up, tearing up any shreds of evidence there might have been
against Dixon, and putting the case against Mrs. Britland in true and
convincing colours, winding up by saying, “And now, gentlemen, you had
better go and consider it, and to-morrow morning I will hear what you
have to say.”
The jury held a brief consultation and begged a quarter of an hour in
which to escape the threatened hotel. The judge granted this, and
again the jury retired.
I am far from saying that modern judges permit wretches to hang that
jurymen may dine, or that they are actuated by any but business
motives in sitting late hours, but I have my doubts whether justice is
as well administered in the late hours of the night as in more normal
business hours, and it is at least noticeable how this takes place
more in the provinces, where the judges live in lodgings, than in
London, where their lordships are in reach of their clubs and their
homes. I do not think the jury in the Britland case would have agreed
but for the threat of the hotel made to them at 10 o’clock at night,
but it was certainly in mercy to the wretched woman in the dock that
the affair was ended, for there were two other indictments for murder
hanging over her head.
I said the woman in the dock, but the late hours were, I fear,
responsible for a very curious blunder in procedure.
Whilst Mr. Justice Cave was giving his last instructions to the jury,
of which Byrne and I took notes, I added to my note, “During this
direction of the judge the prisoner was absent.” I called Byrne’s
attention to this fact, and he decided to make a note of it and say
nothing.
Blair afterwards considered that if he moved for a writ of error the
fact of the prisoner’s absence might be held to invalidate the
verdict, so jealously is the right of a prisoner to be present during
his trial guarded by the English law.
Nothing was done in the matter because of the two further indictments.
Still, had the trial been concluded in normal working hours, such a
blunder would not have been made by judge or clerk of assize.
And now the jury return and answer to their names. The gaslights flare
up. Doors swing backwards and forwards as counsel and officials come
hurrying into court. From behind the javelin men crowds press eagerly
forward at the back of the court, and tired faces peer through the
darkness of the gallery, whence you hear murmurs and sighs of relief
that at last the moment waited for is at hand. The wretched woman,
tottering to the front of the dock, is the colour of the parchment
upon which her crime is indicted. She is asked why sentence should not
be pronounced. She clings to the rails and begins slowly and firmly,
“I am quite innocent. I am not guilty at all,” and then breaks into
piteous sobs and tears, and the female warder holds her in position as
if she were being photographed. The judge’s clerk, who is stifling a
yawn, has placed the black cap on his master’s wig. The judge in his
nasal, solemn tones gets to the sentence in as few personal words as
may be. The woman shrieks out “I never administered anything at all to
Mary Dixon! Nothing whatever!” And when the judge reaches in resolute,
mournful syllables the formal death sentence, the human voice that
utters it seems to toll like a harsh metal bell hopelessly and
inevitably beating out the last official message of the law: “And that
is that you be taken from here to the prison from whence you came,
that from thence you be taken to a place of execution, and that there
you be hanged by the neck until you be dead, and that your body be
buried within the precincts of the prison――――” But the final prayer
that the Lord may have mercy on her soul is lost in the wild,
terror-stricken cries of the woman for mercy as they unfasten her
fingers from the rails and carry her down the stairs towards the gaol,
and her shrieks and sobs come echoing out of the stone passages below
into the darkening court from which her fellow-creatures are slinking
away in horror.
The only other murder case in which I was engaged, and in which the
sentence of death was passed, was in 1889――a case in which I
prosecuted as junior to Falkner Blair――and the facts remain vividly in
my memory.
Reg. _v._ Dukes, or the Bury murder, as it was called, attracted
widespread interest. Dukes was manager of one of a series of furniture
shops belonging to the Gordon Furnishing Company, the central shop of
which was in Strangeways, Manchester. The business was owned by an old
man named Gordon, who had two sons, Meyer and George. The family were
Jews. George Gordon visited the Bury shop every Tuesday. There seems
no doubt that Dukes had been stealing the takings, and for a month
before the murder he kept on sending to Manchester bogus letters and
telegrams about business with the intention of keeping George Gordon
away from Bury. For three or four Tuesdays he had not made his usual
visit, and when he did come on the morning of Tuesday, September 24,
Dukes was not there, but, as we learned afterwards, was lying hid and
drinking in a neighbouring public-house. Gordon examined the books and
waited for Dukes, and then returned to Manchester.
There he seemed to have consulted with his father, and returned to
Bury. Meanwhile, Dukes had followed George Gordon to Manchester,
called at the central shop, and made a statement that he had been in
Manchester on business all day, that he was returning to Bury, and
would take a message from the father, which he did. At Bury he now met
George Gordon. The shopboy was sent off by Dukes with some furniture
to an address that proved to be an empty house. When he left with the
cart about 2.30, Gordon and Dukes were alone in the shop together. He
heard them talking as he drove away. Within a few minutes Dukes had
killed Gordon with a hammer, striking him on the back of his head.
I remember going with Blair and the police to the scene of the murder.
It was a little mean shop in a main thoroughfare, about a hundred
yards from the Bolton Street Station. It was a building of two stories
and a cellar, and if the under floor of the cellar had not been cement
the murder might not have been discovered for many years. For we saw
the chips in the edge of the flags, where Dukes had removed one for
experimental burial purposes.
The first thing Dukes did to cover up his tracks was to send a
telegram to the elder Gordon as from George to say he had gone to
Liverpool and would not be back that night. The next day old Gordon
consulted the Manchester police, and the Bury police were communicated
with, but nothing was known against Dukes, and the official view
laughingly communicated to the old man was that he would see his son
again when his money was spent and he was tired of Liverpool. As far
as we could reconstruct his story from the evidence before us, Dukes,
having bought a pick and failed to dig a grave with it, wasted a whole
day without any further move. Then he hit on the idea of putting the
body into a wardrobe which he was going to cart over the hills to
Rochdale, intending probably to throw the body out behind some stone
wall on the moors to the north or dispose of it in some solitary
place. For this purpose on Thursday afternoon, two days after the
murder, he had hired a cart which was waiting at the door.
Wednesday, September 25, was the New Year in the Jewish calendar, when
it is the custom of Jewish families to gather together in the
synagogue. “Let us wait until the night of Wednesday,” said George
Gordon’s father, “and if George is alive he will be with us, and if he
be not here, then we shall know he is dead.”
On Thursday morning there was no news of George. The old man and his
son Meyer went to the Manchester police, and were referred to Bury. At
Bury they insisted that George was dead, and the old man expressed his
belief that his body was in the shop in Central Street.
The police, more to pacify the distressed father than from any belief
in his fears, agreed to make a search of the house, and thus it was
that as the cart stood outside waiting to load up the wardrobe which
Dukes was taking away, Sergeant Ross and two constables with old
Gordon and Meyer entered the shop.
A thorough search was made, and the police for the first time noticed
signs of recent disturbances in the cellar. Whilst the search was
going on Dukes made an exit down a side entry, and was brought back by
the police. Sergeant Ross began to take a deeper interest in him.
Nothing more serious, however, was found, and they all stood in the
little shop around the wardrobe. It looked as if the business of the
police was over.
“What is this wardrobe lying here for?” asked old Gordon.
“It’s going out to Rochdale; the cart is waiting outside for it now,”
replied Dukes.
“Open it,” demanded the old man.
“I cannot. A lady bought it. She packed some things in it, and locked
it and took the key.”
“Then burst it open. It’s mine. Burst it open.”
There seemed no doubt what the old man expected to see. A police
officer prized the door. It flew readily upward, disclosing its
horrid, huddled contents. Meyer flew at Dukes’s throat, crying, “You
have murdered my brother!” But the police pulled him off, and saved
Dukes for the law.
Early in December the case was heard, and we pieced together by a
large number of witnesses the story of the murder. The prisoner made a
statement to the effect that he had been attacked by Gordon and killed
him in self-defence. It was a lame effort, and even Cottingham’s
eloquence could not endow it with probability. It was a callous and
brutal murder, almost excusing the brutal comment which I heard as I
passed through the crowded hall where the result was being discussed.
“Well, ’e won’t get any Christmas dinner, chuse ’ow.”
Dukes was hanged at Strangeways Gaol on Christmas Eve.
I agree that there was little pity shown for Dukes, who was a sodden,
heartless creature, and a criminal of the most degraded type. But the
interest in the trial swept away any sympathy or thought for the
victim and the unfortunate relatives who had been plunged into sorrow
by the act of the criminal.
Just as I have no doubt that the sentence of death for theft and other
offences, well and reasonably and sensibly defended by the more
cautious property-owning minds of the eighteenth century, was
ultimately abolished in deference to the sentiments of the
weaker-minded of the community and the real necessities of society
that they understood better than their opponents, so I have no doubt
the sentence of death will pass away from our administration of the
law altogether before many years are past. I do not suggest the
question is a very burning one from the point of view of criminal law,
but from the point of view of education and the evolution of right
action and conduct in the community, it seems to me to be of
importance. I am certainly far from believing that anything I may say
or write will hasten matters, nor, indeed, is there any hurry about
the affair. It is only some three hundred years since that good
Christian gentleman, Sir Henry Wotton, laid down the principle that
the hanging of men was an uncitizen-like act. True, the principle has
long been accepted by the majority, but we are a cautious and
conservative race. I have long ago ceased expecting to see reforms
come about in my own day. I hear the statesman calling upon me to
“Wait and see!” and although I shall certainly wait as long as I can,
I shall not worry if it is not my lot to see. I have very clear
visions from my own little mountain of the promised land that my
great-grandchildren and their youngsters will live in. It will be as
far removed from us as we are from the days of Sir Henry Wotton, but
what was good common-sense in his day will be good common-sense in
theirs, as it is in ours, and ever shall be, world without end.