Posts filed under 'Notable Jurisprudence'

1788: Levi and Abraham Doan, attainted Tories

Add comment September 24th, 2018 Headsman

On this date in 1788, Pennsylvania highwaymen-cousins Levi and Abraham Doan(e) were hanged on Windmill Island, Philadelphia.*

A whole clan of outlaws turned Revolutionary War Tories, the Doans — brothers Moses, Aaron, Mahlon, Joseph and the aforementioned Levi plus their cousin Abraham — “were all of the Quaker faith and did not believe in war,”** according to a descendant, but “The new government levied a tax upon Joseph, Sr., the father of the Tory Doan boys, confiscated his farm, threw his wife, 3 daughters and youngest son off of the land, jailed Joseph Sr. for non payment of taxes and branded him on his hand as a criminal. This was the given reason for the start of the notorious group known as the Tory Doans.” During the Revolutionary War they served their pecuniary interest by pillage, and their political interest by informing for the British army, in an exciting sequence of adventures. (A public domain history of the Doans amid the revolution can be enjoyed here.)

None of these activities being well calibrated to earn sympathy in the independent United States that emerged and Pennsylvania hit the lot with a judicial attainder issued by the Supreme Court and ratified by the General Assembly.

In a few years’ time the newborn country’s constitution would prohibit acts of attainder but for a few short years this heritage from the mother country — enabling some organ of the state to levy legal penalties on some outlaw party by decree, absent any sort of trial — incongruously continued in that land of the free. In these very pages we have previously noticed an attainder controversially invoked by brand-name founding fathers of Virginia, also against bandits with a pronounced Tory lean.

Likewise in Pennsylvania the Doan attainder “provoked a constitutional test.” (Source) When gang leader Aaron Doan was arrested, he faced the prospect of immediate execution; however, he was able to produce an alibi relative to the specific incident charged — the robbery of a county treasurer in 1781 — and “to the disappointment of many, he was reprieved under the gallows.” (Maryland Journal, Aug. 19, 1788) He later emigrated to Canada. (His brother Joseph did likewise.)

The kinsmen were not so lucky, this time coming out on the short end of the constitutional test case — as described by patriot statesman Charles Biddle, who made an unsuccessful intervention on their behalf in the Supreme Executive Council that wielded executive power in the commonwealth until 1790.†

The Legislature were inclined to pass a bill in their favor, and appointed a committee, consisting of Mr. Lewis, Mr. Fitzsimons and Mr. Rittenhouse, to confer with the Supreme Executive Council on the subject of their pardon. This I believe was what proved fatal to these young men. Several of the members of the Council thought the Legislature had no business to interfere, as the power of pardoning, by the Constitution, was given to the Council. They refused to pardon or extend the time fixed for their execution. It was in vain the members of the Legislature and the minority in the Council urged the peculiar situation of these unfortunate men; the majority were jealous of the interference of the Legislature, and it was carried by a very small majority, that they should suffer. Going to the Council the day afterwards, I met them going in a cart to the gallows, followed by their relations and friends. It was a very affecting sight. They died with great firmness.

* An island in the Delaware River which was later bisected by a ferry channel, dividing it into Smith’s Island and Windmill Island. Both islands were removed by civil engineers in the late 19th century as an aid to the Philadelphia port.

** To revolutionary patriots, Quakers looked a rather suspiciously British-friendly bunch.

† The body’s president at the time of the Doan hangings was no less than the $100 bill guy himself, Benjamin Franklin. Surprisingly, Benjamin’s son William Franklin had during the war years been the Tory governor of New Jersey in which capacity he had signed off on some political executions of his own.

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Entry Filed under: 18th Century,Capital Punishment,Common Criminals,Death Penalty,Disfavored Minorities,Execution,Hanged,History,Notable Jurisprudence,Outlaws,Pennsylvania,Public Executions,Spies,Theft,USA

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2016: Mir Quasem Ali

Add comment September 3rd, 2018 Headsman

On this date in 2016, Bangladesh hanged tycoon Mir Quasem Ali for crimes against humanity committed during that country’s 1971 War of Independence from Pakistan.

Known at the time of his death as the wealthiest patron of the party Jamaat-e-Islami, Mir Quasem Ali was in 1971 a first-year physics student at Chittagong College.

This cataclysmic year saw “East Pakistan” — as it was then known — separated from Pakistan amid an infamous bloodbath, and it was for this bloodbath that Ali hanged 45 years later. At the time, he was a member of the Islamist student organization Islami Chattra Shangha;* in the autumn of 1971, that organ was tapped for recruits to the pro-Pakistan paramilitary Al-Badr which helped carry out wholesale massacres. Some three million people are thought to have died during this war.

The court that noosed him found that Ali helped to orchestrate the abductions of pro-independence activists to a three-story hotel in Chittagong commandeered from a Hindu family. Victims there were tortured and some murdered, although others survived to tell of Al-Badr guards announcing the defendant’s arrival with the words “Mr Quasem is here. Mr Commander is here,” seemingly establishing quite a high degree of responsibility for events under that roof.

After a bad result in the war, he fled to Saudi Arabia and embarked on the business career that would see him into the global oligarchy as a billionaire media mogul and (once back in Bangladesh) the chief financier of the chief Islamist party. When a score-settling Prime Minister Sheikh Hasina Wazed initiated a tribunal to try human rights crimes from the 1971 war, Mir Quasem Ali immediately started spreading millions around Washington D.C. lobby shops in an unsuccessful bid to use international pressure to shut down the proceedings.

He maintained his innocence to the last, even refusing to seek a presidential clemency since that would have entailed an admission of guilt. These trials, several of which have ended at the gallows, have been intensely controversial within Bangladesh, and without.

* Its present-day successor organization is Bangladesh Islami Chhatra Shibir … which was founded in 1977, by Mir Quasem Ali.

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Entry Filed under: 21st Century,Activists,Bangladesh,Businessmen,Capital Punishment,Crimes Against Humanity,Death Penalty,Execution,Hanged,History,Kidnapping,Murder,Notable Jurisprudence,Occupation and Colonialism,Ripped from the Headlines,Terrorists

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1584: Samuel Zborowski, dangerous precedent

Add comment May 26th, 2018 Headsman

On this date in 1584, Samuel Zborowski was beheaded at Krakow’s Wawel Hill for treason and murder committed ten years before.

A monument to the timeless abuse of the prosecutor’s discretion, Zborowski (English Wikipedia entry | Polish) was a powerful nobleman who got into a snit when nobody of equal stature would enter the lists with him at a tournament.

Instead, his challenge was answered by a common trooper in the retinue of the castellan of Wojnice,* one Jan Teczynski. Pissed at the affront, and doubly so when his own retainer was defeated by Teczynski’s, Zborowski went right after Teczynski right there in the presence of the newly elected Polish king, Henry de Valois.** The affront of lese-majeste was compounded when Zborowski’s flailing mace mortally wounded another castellan who attempted to intervene.

The outlawed Zborowski fled to the protection of Stephen Bathory,† Voivode of Transylvania.

That might have been that, and left Zborowski to join Europe’s forgettable ranks of exiles, adventurers, and pretenders playing out the string under the patronage of some foreign prince.

But when the elective throne of mighty Poland came open soon thereafter, Zborowski’s patron decided that he liked the look of it — and he obtained the result, with the help of a dynastic marriage into Poland’s Jagiellon dynasty of illustrious memory.

Since the Zborowskis had been big supporters of Stephen Bathory, Samuel returned as well, justifiably anticipating not merely pardon but elevation. To their dismay, they found themselves frozen out … and they responded with a series of insubordinations: plotting with the invading Russians, fomenting an unwanted diplomatic crisis with freelance attacks upon the Ottomans.

In the end, our man was undone by the same violent highhandedness that had forced his flight from Poland in the first place. Zborowski’s ill treatment of the young lute composer Wojciech Dlugoraj left the latter so desperate to escape Zborowski’s court that Dlugoraj stole some treasonable correspondence between Zborowski and his brothers and sent it to Zborowski’s enemy, Jan Zamoyski.‡ Those letters indicated that Samuel was contemplating assassinating the king.

Zamoyski found, and Bathory agreed, that the most expedient way to remove this troublemaker was simply to execute the 1574 sentence, from that bludgeoned castellan. The new regime had conveniently never bothered to lift it.

Although legal, Zborowski’s execution was obviously quite irregular and it outraged many in the nobility who perceived it a potential precedent for absolutism; recrimination over the action tore apart the 1585 meeting of the Polish Sejm. (In later years, this body formally endorsed Zamoyski’s actions but only after enacting a Lex Zborowski to better govern the handling of treason cases.)


Jan Matejko‘s 19th century rendering of Samuel Zborowski en route to beheading.

* At the time an important fortified city, Wojnice or Wojnicz was ravaged by a Swedish army in the 1650s and never recovered; today, it’s a town — having only re-promoted itself from “village” status in 2007 — of fewer than four thousand souls.

** This youngest son in the French royal house had seemed to the Valois safe to make available on the transfer market for foreign sovereigns. However, his brothers’ uncanny talent for dying young without issue very soon required his return to his homeland to take up the throne of France as Henri III during that country’s Wars of Religion. There Henri proved not to be exempt from the family curse: we have previously explored the circumstances of his own violent death — which was also the end of the House of Valois — during the War of the Three Henrys.

† A legendary surname in the annals of horror. This Stephen Bathory was the maternal uncle of the infamous “Countess of Blood”.

‡ The gambit did indeed get the scared lutenist free from Zborowski’s control, but he had to flee to Germany for fear of Zborowski kinsmen’s vengeance.

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Entry Filed under: 16th Century,Beheaded,Capital Punishment,Death Penalty,Execution,History,Murder,Nobility,Notable Jurisprudence,Poland,Power,Public Executions,Soldiers,Treason,Wrongful Executions

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1673: Kaelkompte and Keketamape, Albany milestones

Add comment February 15th, 2018 Headsman

On this date in 1673, Indians named Kaelkompte and Keketamape were sentenced to hanging and gibbeting for the murder of an English soldier near Albany, New York. (The date this sentence was executed, if it was not immediate, has been lost to history.)

This place had been known as Beverwijck up until a few years prior, when the English gave it its new and still-current christening* after taking away New Netherland during the Second Anglo-Dutch War. The transition of its legal organs was a more gradual process — with a long survival of Dutch practices upon which the English were gradually overlaid.

The case at hand was a milestone in that jurisprudence: it appears to be the first documented jury trial (pdf) in Albany — a practice imported from England and reflective of the growing sway of the new boss.

Jury trials did not from that point become universal practice, however, and their use in this instance might have connected to the unusual nature of the prosecution.

Lying at the most northerly navigable point of the Hudson River, at the frontier of the powerful Mohawk and dependent upon they and other friendly indigenes to facilitate its fur trading, Albany kept a practiced blind eye when it came to Indian crimes. The 1665 murder of a Dutchman, the last previous documented homicide between the peoples, appears to have gone completely unpunished: in practice, intercultural grievances were settled privately, if at all.

But English law at least aspired to a more totalizing view and when one of the King’s subjects was murdered by natives who were not members of the powerful Iroquois confederation, it found its ideal test case — as we see in Courts Minutes of Albany, Rennselaerswyck and Schenectady, 1668-1673 (landing page | specific pdf volume). The ability of Albany to impose not only hanging but a potentially provocative gibbeting in this instance essentially confirmed the precedence of colonial jurisdiction over the smaller Hudson tribes. (The Iroquois were quite a different question and maintained expansive rights against the European encroach even into the post-colonial era.)

Kaelkompte, a northern Indian, from Narachtack castle, appearing in irons before the court, was asked whether he had any objection against any of the 12 jurymen standing before him?

Answered, that none of them had done him any harm.

Thereupon 12 jurors were sworn, as shown by the list, to do justice between the king and the prisoner.

As to the first point of the preliminary examination, as to conspiracy, etc., Kaelkompte answers that Keketamape asked him in the woods whether Stuart had any goods? To which he replied that some time ago he had seen three blankets and some coats there. Also, that Keketamape, sitting with him near the fire in the woods, said to him: “I shall kill Stuart.”

Whereupon Kaelkompte, saying that he did not quite understand, asked him: “W hat did you say? You wish to kill Stuart? If you kill him, you will kill yourself.”

Nota Bene. Here followed the further circumstances of the case. From the proceedings and the further documents it appears that Keketamape confessed that he was guilty of the murder.

Dirck Wessels, Meyndert Hermansz, Johannes Wendel, Willem Nottingam and Jan Jacobsz declare under oath that some time ago, being with the prisoners, listening to their caviling, [they heard] Keketamape say to Kaelkompe: “You killed Stuart and you say that I did it all.” Kaelkompe replied to this: “You did too.”

Kaelkompte acknowledges that he said it, but [declares] that it was longer ago than they say.

Indictment read to Keketamape and Kaelkompte

Keketamape admits that he had a hand in the murder and that he is guilty of having killed Stuart.

Kaelkompte admits that he consented by using these words: “There he is now. First kill him!” But he denies that he is guilty of the killing and says that he is not a bit afraid. He admits further, upon conviction by the interpreters, that he helped to kill Stuart by [the words of] his mouth.

The jury, having carefully weighed and considered the case according to the evidence, informations and confessions, conclude and decide that Keketamape and Kaelkompte are guilty of the murder of the person of Mr Stuart.

Sentence

Therefore, their honors sitting as this Special Court of Oyer and Terminer, having duly taken into account and considered the proceedings and also the verdict of the twelve jurymen that according to the documents placed into their hands the said Kaelkompte and Keketamape are guilty of the murder of the aforesaid Jan Stuart, condemn them both, as they condemn them hereby in the name of his Royal Majesty of Great Britain, under the government of the Right Honorable Colonel Francis Lovelace, to be brought together to the place of execution to be hanged by the neck until they are dead, dead, dead, and thereafter to hang in chains. Actum in Fort Albany, the 15th of February 1672/73.

By order of the honorable Court of Oyer and Terminer
Ludovicus Cobes, Secretary

One of the jurors in this trial, Willem Teller, might have been the same man at issue in a case five years later when “a certain squaw was shot dead at the house of Teller, burgher of this city.” The court found it an accident and ordered him to pay the Mahican nation fifty florins: laying aside any question of proportionality, this later case also demonstrates English courts successfully asserting their rights over violence between peoples that formerly would have been settled in private.

* The name “Albany” honored the Duke of Albany, the man who would eventually be King James II … until he was deposed by a Dutchman.

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Entry Filed under: 17th Century,Capital Punishment,Common Criminals,Crime,Death Penalty,England,Execution,Gibbeted,Hanged,History,Milestones,Murder,Netherlands,New York,Notable Jurisprudence,Occupation and Colonialism,Public Executions,Uncertain Dates,USA

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1942: Six German saboteurs

Add comment August 8th, 2017 Headsman

Seventy-five years ago today, six German saboteurs were electrocuted in a Washington, D.C. jail … a failed World War II operation that bequeathed its target nation a controversial legal landmark.

On June 13 of 1942 — just eight weeks before they faced the electric chair — Herbert Hans Haupt, Heinrich Heinck, Edward Kerling, Herman Neubauer, Richard Quirin and Werner Thiel, all of them German nationals who had returned to the Fatherland after previous emigration to the U.S., were dropped by U-Boats along with two other men, Ernest Peter Burger and George John Dasch, in two quartets on the eastern fringe of Long Island and the Florida coast.

“Operation Pastorius” to sabotage war industries on the U.S. mainland would never even have time to get its land legs; spied in Long Island by a Coast Guard watchman whom they clumsily attempted to bribe, the agents scattered themselves to New York and Chicago. Burger and Dasch — who for this reason were not in the end electrocuted* — had their reservations about the Third Reich to begin with and guessed after the Coast Guard encounter where this fiasco was heading. They rang up the gobsmacked FBI to shop themselves and their comrades, enabling the feds to pick up the other six men in short order.

The eventual fate of the Nazi saboteurs is no surprise, but the means to obtain it was controversial then and remains so to this day.

On a substantive level, the Germans had landed in uniform for the explicit purpose of asserting POW status were they to be apprehended immediately; this didn’t cut much ice since all had then discarded their uniforms and attempted to melt away in the U.S. Attorney General Francis Biddle successfully cited the American Revolution precedent of John Andre, whom patriots hanged as a spy after detaining him out of uniform behind their lines. That they hadn’t yet done anything yet was a bit beside the point.**

Much thornier was U.S. President Franklin Delano Roosevelt’s order to try the Germans using a seven-member military tribunal that he conjured for this purpose, and seemingly with the objective of assuring the harshest possible sentence. (Bear in mind that these events transpired only months after Pearl Harbor.) Such a commission is explicitly anticipated by the U.S. Articles of War† whose 81st and 82nd provisions the saboteurs were charged with violating:

ART. 81. RELIEVING, CORRESPONDENCE WITH, OR AIDING THE ENEMY. — Whosoever relieves or attempts to relieve the enemy with arms, ammunition, supplies, money, or other thing, or knowingly harbors or protects or holds correspondence with or gives intelligence to the enemy, either directly or indirectly, shall suffer death or such other punishment as a court-martial or military commission may direct.

ART. 82. SPIES. — Any person who in time of war shall be found lurking or acting as a spy in or about any of the fortifications, posts, quarters, or encampments of any of the armies of the United States, or elsewhere, shall be tried by a general court-martial or by a military commission, and shall, on conviction thereof, suffer death.

However, the military commission did not seem very well in keeping with the American preference for regular jurisdictions as expressed by Ex parte Milligan, the post-Civil War decision forbidding the use of military courts anywhere that civilian courts are functioning.‡ The signal Milligan precedent formed the basis of a furious objection by Army defense lawyer (and future Secretary of War) Kenneth Royall, who fought his clients’ hopeless corner so vigorously that the doomed men signed a letter praising his efforts. (“unbiased, better than we could expect and probably risking the indignation of public opinion.”)

Already recessed for the summer, the Supreme Court hastily reconvened to cut this Gordian knot: the only forum of judicial review the case would ever receive. Its decision, Ex parte Quirin — titled after one of the defendants — spurned Royall’s Milligan claim and upheld Roosevelt’s statutory authority to determine this case for a military tribunal by a unanimous vote.

The court’s common front concealed a variety of stances on the reach of executive authority. While the whole court agreed that “Congress has explicitly provided … that military tribunals shall have jurisdiction to try offenses against the law of war in appropriate cases,” a concurring memorandum by Justice Robert H. Jackson — later famous for his role prosecuting the Nuremberg trials — proposed to carry the argument well beyond this point. Jackson claimed in a concurrence that he would eventually withdraw that “the Court’s decision of the question whether it complied with the Articles of War is uncalled for … it is well within the war powers of the President to create a non-statutory military tribunal of the sort here in question.” This was by no means the consensus of his colleagues.

The later publication of a “Soliloquy” memorandum by one such colleague, Felix Frankfurter, throws a less than dispassionate light on deliberations. Writing to smooth over internal disputes between the blackrobes, Justice Frankfurter shows himself personally hostile to the Germans — “You’ve done enough mischief already without leaving the seeds of a bitter conflict involving the President, the courts and Congress after your bodies will be rotting in lime,” he chides them in his own voice. “That disposes of you scoundrels.” In the end, the court took his advice to sidestep the potentially deep jurisdictional question.

But that question has not been left rotting in footnotes (they never are). Quirin in general and Jackson’s expansive claims of executive power in particular have been relied upon by 21st century Presidents to justify muscular and controversial innovations like the Guantanamo Bay prison and the drone war.

A few books about Operation Pastorius and Ex parte Quirin

Pierce O’Donnell, author of In Time of War: Hitler’s Terrorist Attack on America, discussed his book on C-SPAN here.

Jurisprudence is not the only artifact of the Nazi saboteurs’ failed infiltration.

Bizarrely, a tributary slab “in memory of agents of the German Abwehr” was discovered in 2006 illicitly placed on National Park Service land in southeast Washington DC, the same vicinity where the saboteurs had been secretly buried after their electrocution. There it had seemingly reposed some twenty-odd years, unknown but to its devotees … who if the stone’s carvings are to be credited must consist of the heirs of the (defunct since 1983) National Socialist White People’s Party, also known as the American Nazi Party.

* They would be condemned to death along with the rest, but Roosevelt commuted their sentences: a fine boon but far short of the outright pardons they had been promised for their cooperation. In 1948, President Truman had Burger and Dasch deported to Germany, where many saw them as traitors.

** After unsuccessfully attempting to trade Andre for Benedict Arnold, whose defection Andre had facilitated, and whom the American revolutionaries would have much preferred to Andre for a hanging.

† Enacted by Congress in 1920, these Articles of War are no longer operative in the U.S.: they were replaced by the Uniform Code of Military Justice in 1951.

‡ Haupt and Burger were also U.S. citizens, further complicating the commission’s suspension of their constitutional habeas corpus rights.

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Entry Filed under: 20th Century,Capital Punishment,Death Penalty,Electrocuted,Espionage,Execution,Germany,History,Mass Executions,Notable Jurisprudence,Soldiers,Spies,Terrorists,U.S. Federal,USA,War Crimes,Wartime Executions,Washington DC

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1821: Tommy Jemmy executes Kauquatau

Add comment May 2nd, 2017 Headsman

On this date in 1821, a chief of the Seneca Native American nation slit the throat of a woman named Kauquatau, who had been condemned as a witch.

As Matthew Dennis explains in his book on the Seneca of the early American Republic, Seneca Possessed, the rapid march of European settlement and the Seneca’s recent and ambiguous incorporation into the newborn United States had strained the indigenous society in complex ways.

One of those reactions was a period of gendered witch-hunting in the early 19th century, especially growing out of the religious movement of the prophet Handsome Lake.

“Handsome Lake pinpointed the dangers the Seneca faced, the threats that they faced, the source of those threats, and a way … of purging his society of those who were most likely to resist his changes,” Dennis explained in this New Books Network podcast interview.

The “threat” for the instance at hand was a tribal healer who had become suspected of bewitching a man to his death — and her guilt in the same voted on by the Seneca elders. One of their number, Chief Soonongise — known as Tommy Jemmy to whites — went to her cabin on May 2, 1821, and killed her. It’s anyone’s guess whether Kauquatau realized what was happening — whether she took it as a social call or recognized her angel of death from the outset. But to New Yorkers, it was murder plain as day — and Tommy Jemmy was soon confined to a gaol to stand trial for his life.


Another reaction occasioned by the upheaval of those years, a reaction destined to emerge dramatically in this instance, was a feeling-out of the Seneca people’s position within the Anglo Republic that had engulfed it. “If the Senecas were a conquered people, as some tried to allege, the terms of their conquest were ill defined, their sovereignty, though diminished, still recognizable,” Harris writes. In these very pages we have met this ill-defined sovereignty several times: a few years on from the events of this post, the state of Georgia would defy a Supreme Court stay and execute a Cherokee man in a case turning on disputed sovereignty.*

Here in New York, Tommy Jemmy’s trial would open a different contest over the same underlying question.

Rather than attempting to deny or minimize his “crime,” Tommy Jemmy defended it as a legal execution conducted by the proper jurisdiction of Seneca laws — no matter for the interference of New York. It’s a position that appeared to have ample sympathy among Anglo New Yorkers,** who gingerly kicked the argument to a Circuit Court and thence to the New York Supreme Court which found itself thereby obliged to “a very thorough examination of all the laws, treaties, documents and public history relating to the Indians” going all the way back to the Dutch. (Cherry-Valley Gazette, Aug. 21, 1821)

What musty old scrolls could supply by precedence, the luminous Seneca orator Red Jacket brought to life in his forceful defense. Red Jacket had an expert feel for the pangs in the Anglo conscience, as one can appreciate by his retort against one obvious line of condescension.

What! Do you denounce us fools and bigots because we still believe what you yourselves believed two centuries ago? Your black-coats thundered this doctrine from the pulpit, your judges pronounced it from the bench, and sanctioned it with the formality of law; and would you now punish our unfortunate brother for adhering to the faith of his fathers and of yours? Go to Salem! Look at the records of your own government, and you will find that thousands have been executed for the very crime which has called forth the sentence of condemnation against this woman, and drawn upon her the arm of vengeance. What have our brothers done more than the rulers of your people? And what crime has this man committed, by executing in a summary way the laws of his country and the command of the Great Spirit?

It was by no means certain that Tommy Jemmy’s argument would prevail here; a literally simultaneous case in Michigan saw a native defendant make a similar jursidictional argument and still wind up on the gallows. The question in the end stood outside any existing grant of law — and it was resolved in a legally questionable way, too.

Accepting the merits of Tommy Jemmy’s position but also unwilling to render Indian power over life and death into the statutes, Tommy Jemmy was set free without any judgment and subsequently pardoned by the legislature — the pardon reversing no conviction. He was an executioner, after all.

* U.S. President Andrew Jackson vigorously supported the state in this separation-of-powers dispute: it’s the case of which he alleged to have remarked, “[Chief Justice] John Marshall has made his decision; now let him enforce it.”

** In an essay appearing in New World Orders: Violence, Sanction, and Authority in the Colonial Americas, Dennis notes the precedent here of an 1802 trial involving a Seneca man named Stiff-Armed George. Although Stiff-Armed George murdered a white victim and not on Seneca land, Red Jacket also urged a defense, successfully: “Did we ever make a treaty with the state of New-York, and agree to conform to its laws? No. We are independent from that state of New-York … we appeal to the government of the United States.” (The Seneca did have treaties with the federal government.)

They finessed the issue in the end: Stiff-Armed George was convicted, but immediately pardoned.

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Entry Filed under: 19th Century,Borderline "Executions",Capital Punishment,Crime,Death Penalty,Execution,History,New York,Notable Jurisprudence,Occupation and Colonialism,Put to the Sword,USA,Witchcraft,Women

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1946: Masaharu Homma, for the Bataan Death March

Add comment April 3rd, 2017 Headsman

Laid down on the altar I am
Offered as a victim to God
For the sake of
My newly born country

-Verse written by Masaharu Homma awaiting execution (Source)

Imperial Japanese Lt. Gen. Masaharu Homma was shot by a firing squad outside Manila on this date in 1946 for the notorious Bataan Death March.

Homma commanded the 14th Area Army tasked with occupying the Philippines immediately after the attack on Pearl Harbor opened a Pacific War against the U.S.

Retreating from the Philippines in early 1942, U.S. Gen. Douglas MacArthur famously vowed, “I shall return.” To Homma’s grief, he did just that.

While MacArthur cogitated his revenge, Homma was finishing off the remnants of his last great stand in the Battle of Bataan. Bataan was a victory for Japan, but a bloody and protracted one; it cost the lives of some 7,000 Japanese, and the three-month battle has sometimes been credited with slowing the Japanese advance sufficiently to safeguard Australia; it also left the occupiers with an unexpectedly huge complement of POWs.

On April 9, 1942, the very day fighting ended at Bataan, transfers began for these prisoners, who would be driven by train and then marched overland some 60+ miles to Camp O’Donnell. More than 60,000 Filipinos and about 15,000 Americans endured this harrowing five- or six-day slog — the Bataan Death March.

A few books about the Bataah Death March

Early reports of the death march made grist for this wartime propaganda poster in the U.S.

This crucible of endurance, both physical and spiritual, came by its evil repute honestly; in the age of the Internet, numerous appalling testimonials are within easy reach of a web search. They recount battle-wearied men enervated by hunger and thirst, liable to be summarily shot or bayoneted for making themselves the least bit conspicuous to captors who already disdained them for having the weakness to surrender in the first place.

Some were murdered at the outset: having any Japanese “trophies” on one’s person when captured was liable to be worth a summary bullet, or a quick flash of an officer’s katana. An even more certain death sentence was falling behind on the march, and wounded prisoners could expect no quarter: they had to keep up with their compatriots or the Japanese “buzzard squad” trailing a few score meters behind every marching peloton would finish them off with any other stragglers. In different groups POWs might be thrashed or killed over any trifling annoyance; meanwhile, those suffered to live trudged under a wasting sun, nearly unnourished but for fetid handfuls scooped from mud puddles, dying on their feet hour by hour. Dehydrated to the point of madness, some snapped and ran suicidally for the tantalizing nearby village wells that marchers were prohibited from accessing.

Something like a quarter, and maybe nearer to a third, of the souls who set out on the Bataan Death March never reached Camp O’Donnell. Those who did entered new portals of torment: rent by dysentery and crowded cheek to sunken jowl, prisoners died off daily by the dozens until they were finally dispatched — often crammed like sardines into the bowels of “hell ships” — to different Japanese work camps.

The Bataan Death March was a no-question basket of war crimes, egregiously flouting existing POW treatment accords.* It’s far more questionable whether our man Gen. Homma was the right person to answer for it.

Homma had segued directly from the Battle of Bataan to the succeeding Battle of Corregidor after which he had been cashiered for a homeland desk job.

Ironically, it was an excess of leniency that helped earn Homma his enemies among the brass — the opposite of the thing that hanged him. For many who observed the postwar trial slating him with 48 war crimes violations related to the Death March, Homma was a figure more tragic than wicked, prey to returning victor MacArthur’s pique at the defeat Homma had once inflicted upon him.

Little reliable evidence could show that Homma blessed or even knew of the atrocities committed in the march, but he himself allowed during trial that “I am morally responsible for whatever happened in anything under my command.” According to Homma’s American defense attorney Robert Pelz — a biased source to be sure — the general slipped into genuine disgust and remorse during the trial as a parade of witnesses remembered their ordeals. “I am horrified to learn these things happened under my command,” Homma wrote in a note passed to Pelz at one point. “I am ashamed of our troops.”

The hanging verdict was controversial then and remains so now. “If the defendant does not deserve his judicial fate, none in jurisdictional history ever did,” MacArthur complained. He honored the mercy application of Homma’s wife Fujiko only insofar as to permit the general a more honorable execution by musketry, instead of hanging.

The bulk of the U.S. Supreme Court okayed the procedure by which the U.S. military brought that fate about, although Justice Frank Murphy issued a scorching dissent urging that in the haste and partiality of the proceedings against both Homma and General Tomoyuki Yamashita “we abandon all pretense to justice, let the ages slip away and descend to the level of revengeful blood purges.”

One who would share that sentiment was an 18-year-old Navy man who observed the trial, Bob Perske. Perske would remember this his experiences on the Philippines at the end of World War II “sharpened his sensitivies toward vulnerable persons” and influenced a subsequent career advocating for people with disabilities as well as those caught in the toils of the criminal justice system. Executed Today formerly interviewed Mr. Perske in connection with the wrongful execution of a mentally disabled man in Colorado, Joe Arridy.

* It’s worth noting that Japan was not party to the 1929 Geneva Convention on the Treatment of POWs.

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Entry Filed under: 20th Century,Capital Punishment,Death Penalty,Execution,Famous,History,Japan,Notable Jurisprudence,Occupation and Colonialism,Philippines,Shot,Soldiers,U.S. Military,USA,War Crimes

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1884: Not Crow Dog, saved by an ex parte

Add comment January 14th, 2017 Headsman

January 14 was supposed to be the hanging day in 1884 for the Sioux Crow Dog — but instead of being executed he was busy making caselaw.

A sub-chief of the Brule Lakota, Crow Dog on August 5, 1881, met — intentionally? — the tribal chief Spotted Tail on a road in the Rosebud Reservation and shot him dead with a rifle.

The killing was adjudicated the very next day within the Brule community, at a council where the killer and the survivors of his victim agreed together on the appropriate compensation, and paid up.* But the U.S. Indian agent on the scene also arrested Crow Dog a few days later, and had him tried for murder in a non-Indian court in the the frontier town of Deadwood.

Sidney Harring, who would expand this review to book length with Crow Dog’s Murder: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century, argued in a 1988/1989 paper** that the needless white court’s trial was staged from the outset as a test case by the Bureau of Indian Affairs, angling for new legal tools to break the doctrine of tribal sovereignty which dated back to Worcester v. Georgia (1832). Although that anti-sovereignty cause would suffer a tactical setback in this case, it would very soon carry the day.

Condemned to death early in 1882, Crow Dog had various appeals, respites, and delaying actions that stretched the case out for nearly two years until the U.S. Supreme Court at last stepped in ahead of a scheduled January 14, 1884 execution to adjudicate the question of whether a murder within a tribe, on that tribe’s own reservation, was within the proper jurisdiction of non-Indian courts like the one that tried Crow Dog. Its Ex parte Crow Dog resoundingly answered in the negative, a milestone in the legal framework around Indian sovereignty in the U.S. To execute Crow Dog under the white court’s verdict, the justices ruled, would require Anglo law to be

extended over aliens and strangers; over the members of a community, separated by race, by tradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others, and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it. It tries them not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to the law of a social state of which they have an imperfect conception and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man’s revenge by the maxims of the white man’s morality.

The legal doctrine at work here holds that although conquered, native tribes still possess internal sovereignty. And with Ex parte Crow Dog it became clear and settled American jurisprudence that one attribute of that remaining sovereignty was plenary — that is, absolute — power over purely internal affairs.

At least, for a year.

White America was discomfited by the abrogation of its morality-maxims over the revengeful red man, and the situation invited moral panic around any malfeasance in Indian country. The Washington D.C. Evening Star would complain months later (June 5, 1884) that Ex parte Crow Dog “has had the effect of creating the idea among the Indians that there is no law to punish an Indian for a crime committed on a reservation.” And the Supreme Court itself had slyly noted that it was obliged to make such rulings absent “a clear expression of the intention of Congress” to take a bite out of Indian sovereignty — an intent “that we have not been able to find.”

So in 1885, the U.S. Congress decided to express that intent and voted the Major Crimes Act placing Indians under federal, not tribal, jurisdiction for seven major types of crimes — including, of course, murder. “We all feel that an Indian, when he commits a crime, should be recognized as a criminal,” Michigan Congressman Byron Cutcheon urged on the legislation’s behalf. “It is an infamy upon our civilization, a disgrace to this nation, that there should be anywhere within its boundaries a body of people who can, with absolute impunity, commit the crime of murder, there being no tribunal before which they can be brought for punishment.”

This briefest interim between Ex parte Crow Dog and the Major Crimes Act was in a sense the high water mark for tribal sovereignty. Following the Major Crimes bill, white politicians began almost systematically reaching onto the reservations to legislate, picking away at tribal sovereignty until another much more infamous case, Lone Wolf v. Hitchcock, disastrously declared that plenary power now resided in Congress.

Crow Dog went on to become a major figure in the ghost dance movement. Present-day American Indian Movement activist Leonard Crow Dog is a descendant; he’s written a book connecting back to his famous ancestor called Crow Dog: Four Generations of Sioux Medicine Men. Meanwhile, South Dakota’s Sinte Gleska University is named for Spotted Tail.

* The price was $600, eight horses, and a blanket.

** Sidney Harring in “Crow Dog’s Case: A Chapter in the Legal History of Tribal Sovereignty,” American Indian Law Review, Vol. 14, No. 2 (1988/1989) — also the source of the preceding footnote.

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Entry Filed under: 19th Century,Capital Punishment,Crime,Death Penalty,Disfavored Minorities,Execution,Hanged,History,Murder,Not Executed,Notable for their Victims,Notable Jurisprudence,Occupation and Colonialism,Politicians,Racial and Ethnic Minorities,South Dakota,U.S. Federal,USA

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1973: Lt. Col. Mohamed Amekrane, no asylum

Add comment January 13th, 2017 Headsman

On this date in 1973, Morocco shot 11 officers for a regicidal mutiny.

Amekrane (left) with the coup’s leading spirit, Mohamed Oufkir

Their deaths were the consequence of the near-miss bid to bring down Morocco’s King Hassan II by bringing down his airplane, a plot to which Lt. Col. Mohamed Amekrane, the commander of the air base that launched fighters against the king’s convoy, was utterly pivotal. It’s no surprise that he’d be in the way of the royal revenge domestically after this incident; more surprising and controversial was the role the British would play in dooming the man.

As he discovered that the king’s passenger plane had somehow escaped the predations of his F-5s, Amekrane (it’s also sometimes spelled Amokrane) alertly requisitioned a helicopter and fled with another officer to British soil at nearby Gibraltar, where they requested asylum on Aug. 16.

This put Westminster in an awkward situation: repatriate the men to sure execution, or give refuge to the would-be assassins of a friendly head of state.* Still more was it a procedural twilight, where the power of bureaucratic discretion prevailed by declaring the form of the law in ambiguous circumstances.

After a flurry of consultations “at ministerial level” that also weighed “the possibility of repercussions with other governments,” (London Times, Aug. 18, 1972) the Heath government classified the fugitives as refugee illegal aliens and repatriated them within days, lamely explaining that Gibraltar, a small place, didn’t have much room for asylum claimants. And once they were fitted with the “illegal alien” hat it was simple: “they were returned to Morocco because that was the place from which they came.” (the Times, Aug. 19) Application, rejection, and deportation all took place within a mere 15 hours, purposefully too fast for anyone to get wind of what was happening or to mobilize resources in support of the Moroccans.

London’s legal chicanery drew a discomfited response from some other elites as well as members of the public or at least those with a propensity towards letters to the editor in the early 1970s. Parliamentarian Ivor Richard fumed that “there was surely no necessity in international law or in humanity deliberately to have sent them back to what appears to be their deaths.”

The Times would editorialize in that same Aug. 19, 1972 edition against the “haste and informality in the procedure which contradict Britain’s long tradition of care in such cases” — noting the irony that

the absence of an extradition treaty [might have been thought] would make it more difficult for the Moroccan authorities to reach out to fugitive offenders on British soil. In fact it has made it easier for them … because of British ministers’ willingness to use the power to deport aliens whose presence is judged undesirable in such a way as to achieve the result of extradition. And the exercise of that power is not subject to the same safeguards.

Amekrane had no safeguards at all once he was back in Moroccan hands. That November, he was condemned to die along with his companion on the Gibraltar caper Lt. Lyazid Midoaui, plus nine other members of the Moroccan Air Force complicit in the coup attempt; the whole batch was executed together on this date at a prison in Kenitra.

But in Britain his case outlived the fusillade. For the overhasty asylum refusal, Amekrane’s widow filed suit against the UK in a European Commission of Human Rights court, eventually winning a £37,500 settlement.

* The relations between the states in question went beyond mere chumminess: Franco’s Spain was maintaining a blockade against Gibraltar, in consequence of which the imperial outpost was heavily supplied by and from Morocco. The men’s lives were sold, so critics carped, for “lettuces.”

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Entry Filed under: 20th Century,Capital Punishment,Death Penalty,England,Execution,Gibraltar,History,Mass Executions,Morocco,Notable for their Victims,Notable Jurisprudence,Shot,Soldiers,Treason

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1998: Cheung Tze-keung, Hong Kong kidnapper

Add comment December 5th, 2016 Headsman

Hong Kong gangster Cheung Tze-keung was shot with four accomplices on this date in 1998.

Unsubtly nicknamed “Big Spender”, Cheung financed his bankbusting lifestyle with big-ticket heists and elite kidnappings, even threatening the Guinness world record by “earning” a $138 million ransom for the son of tycoon Li Ka-shing. (Cheung had the chutzpah to then solicit Li’s investment advice.)

After a (different) failed kidnapping, Cheung ducked into mainland China to lay low for a spell; he was arrested there in early 1998, months after his Hong Kong stomping-grounds had been transferred to Chinese sovereignty.

Although the man’s guilt was not merely plain but legend, his case was a controversial one when it became an early bellwether for Hong Kong’s judicial independence. Cheung was put on trial for his Hong Kong robbery and kidnapping spree not in Hong Kong but in Guangzhou, the neighboring mainland city — seemingly in order to subject him China’s harsher criminal justice system. (Among other differences, Hong Kong does not have the death penalty.)

“A crime — that of kidnapping certain Hong Kong tycoons — allegedly committed in Hong Kong by some Hong Kong residents [was] tried in the Guangzhou court,” one prominent Hong Kong lawyer explained. “Is it surprising that Hong Kong people are alarmed and ask how is this permissible?”

But if possession is nine-tenths of the law, the Guangzhou authorities had all the permission they could need — the criminal’s own person.

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Entry Filed under: 20th Century,Capital Punishment,China,Common Criminals,Crime,Death Penalty,Execution,History,Hong Kong,Kidnapping,Notable for their Victims,Notable Jurisprudence,Pelf,Shot,Theft

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