On or about this date in 1929, Russian railway magnate Nikolaus (Nikolai) Karlovich von Meck was shot as a saboteur.
Von Meck (Russian link) had the iron horse in his blood: his father Karl was among Russia’s first railroad-builders after the Crimean War clock-cleaning motivated the tsar to make with the modernizing.
While von Meck pere was busy laying crossties in the 1860s, the St. Petersburg Conservatory was germinating the young composer Tchaikovsky. In time, the two men would be linked by the union of their kin: our man Nikolaus Karlovich von Meck married Tchaikovsky’s niece, Anna.
It wasn’t just a glancing association with the musical colossus for the von Mecks. Karl’s widow — Nikolaus’s mother — Nadezhda was Tchaikovsky’s main financial patron for 13 years. They weren’t lovers: Tchaikovsky was gay, and the reclusive Nadezhda von Meck demanded as a condition of her patronage that they never meet. But they kept up a voluminous correspondence, and Tchaikovsksy dedicated several works to her — like this Sympohony No. 4 in F minor.
So Nikolaus von Meck was the genius’s patron’s son as well as the genius’s niece’s husband.
He was also a brilliant engineer and entrepreneur in his own right; over the 26 years preceding the Russian Revolution, he chaired the Moscow-Kazan Railway firm that his father had begun back in the 1860s. Under the son’s leadership its rail-mileage multiplied more than tenfold. He was also one of Russia’s first motorists.
Von Meck remained in Russia after the Bolshevik Revolution, continuing to work on developing the now-Soviet state’s rail infrastructure — his means reduced, he remained no less the conscientious and patriotic artificer. That held even after the man was arrested as a counter-revolutionary a few different times in the revolution’s early years; each time he was soon released.
Ostensibly designed to target the saboteurs that were supposedly retarding economic growth, it would prove its utility in the frightful years ahead as a first-rate instrument of the Terror. The prospect that any economic setback, inefficiency or controversy could be lethally attributed to a cabal of global capitalists intent on strangling communism in the crib made “wrecking” as flexible and as devastating a charge as witchcraft had once been. How do you even begin to rebut that? Wrecking would in time be attributed to innumerable purge victims, great and small, and an implied whip against every worker who might be slacking on his production quota.
This potent juridical apparatus went for its first spin in the North Caucuses city of Shakhty in 1928-29. The Shakhty Trial of 53 engineers and technicians as “wreckers” also has the distinction of being Stalin’s first show trial. Von Meck and four other men* were condemned to die, a comparatively modest harvest of blood next to what was to come; 44 others went to prison.
“What accomplished villains these old engineers were! What diabolical ways to sabotage they found!” Solzhenitsyn mused of those luckless soulsin The Gulag Archipelago.
Nikolai Karlovich von Meck of the People’s Commissariat of Railroads, pretended to be terribly devoted to the development of the new economy, and would hold forth for hours on end about the economic problems involved in the construction of socialism, and he loved to give advice. One such pernicious piece of advice was to increase the size of freight trains and not worry about heavier than average loads. The GPU [forerunner of the NKVD, which in turn became the KGB -ed.] exposed von Meck, and he was shot: his objective had been to wear out rails and roadbeds, freight cars and locomotives, so as to leave the Republic without railroads in case of foreign military intervention! When, not long afterward, the new People’s Commissar of Railroads, Comrade Kaganovich, ordered that average loads should be increased, and even doubled and tripled them (and for this discovery received the Order of Lenin along with others of our leaders) — the malicious engineers who protested became known as limiters. They raised the outcry that this was too much, and would result in the breakdown of the rolling stock, and they were rightly shot for their lack of faith in the possibilities of socialist transport.
This date in 1865 was the originally scheduled hanging of Indiana pro-slavery gadfly Lambdin P. Milligan — a sentence respited two days prior by President Andrew Johnson, and then subsequently commuted, for which reason Milligan survived to attach his surname to a landmark Supreme Court decision the following year.
During the Civil War, the state of Kentucky was a borderlands claimed by, and viciously fought over, by both North and South. “I hope to have God on my side, but I must have Kentucky,” Abraham Lincoln wrote in 1861.
Kentucky’s northern neighbor, the Union breadbasket Indiana, had little fighting and no hint of Confederate power — but it was a hotbed of so-called “Copperheads”, northern Democrats who opposed Lincoln’s willingness to prosecute the civil war. So fraught was the Hoosier political situation that in 1862, Indiana’s Republican governor refused to call the Democrat-dominated legislature for fear that it might vote a secession bill or attempt to withdraw Indiana from the war.
The inevitable existence of northern domestic opposition to the war came joined at the hip to impossible statecraft conundrums. Just how much wartime dissent and/or resistance could be countenanced — as a legal matter, and a practical one? President Lincoln would not have received an A+ from the American Civil Liberties Union; he suspended the writ of habeas corpus in the Union and resorted to military tribunals and martial law in some places.
Our man Milligan was one of these Copperhead Indiana Democrats born to test Washington’s elasticity. He was an exponent of the Knights of the Golden Circle,* a pro-slavery secret society whose name denoted their aspiration to the antebellum filibusters‘ dream of a human-bondage empire to ring the Caribbean basin.
An attorney,** Milligan briefly became the toast of Democrats nationwide (whatever was left of the nation) for his robust defense of Clement Vallandigham when the former Congressman was prosecuted under the anti-Copperhead General Order 38.
At this point, Milligan was very well-known in what was then called the Northwest, and he was a major political player in Indiana — a pivotal state in the 1864 election.
But according to federal spies who tailed him in 1863-64, his interests in governance ran to more illicit grants of state power. Milligan was arrested in October 1864 as a principal in what was dubbed the “Northwestern Conspiracy”: a plot to mobilize the antiwar factions in that part of the country. This was no mere matter of pamphleteering; the “visionary and desperate” scheme aimed to prolong the hopes of the now-fading South by instigating an armed uprising in the Northwest that would relieve Union pressure on Dixie and perhaps turn the tide of the war.
Milligan was among several of the conspirators swept up in arrests in the following weeks, then tried by military tribunal for treason and sedition. It’s hard to argue that the plot was anything but.
But why a military court? This is the question in Milligan’s great legacy to posterity, the Supreme Court ruling Ex Parte Milligan.†
Milligan himself was not a soldier, and had not been in a war zone. He was a civilian, and Indiana’s regular civilian courts had never ceased to function. The question at stake in Milligan’s appeal to the Supreme Court was whether there was any legitimate recourse to a military tribunal under such conditions — well behind the lines, as it were.
On the morning of March 5, 1866, 34-year-old Republican U.S. Representative James Garfield — the future president whose assassin would command contentious caselaw all his own — strode into the U.S. Supreme Court to eloquently argue Milligan’s side.
“Such a doctrine,” Garfield intoned of the civilian courts’ being intentionally bypassed on national security grounds, “is too monstrous to be tolerated for a moment; and I trust and believe that … it will receive its just and final condemnation. Your decision will mark an era in American history. the just and final settlement of this great question will take a high place among the great achievements which have immortalized this decade. It will establish forever this truth, of inestimable value to us and to mankind, that a republic can wield the vast enginery of war without breaking down the safeguards of liberty; can suppress insurrection, and put down rebellion, however formidable, without destroying the bulwarks of law; can, by the might of its armed millions, preserve and defend both nationality and liberty … if the protection of the law shall, by your decision, be extended over every acre of our peaceful territory, you will have rendered the great decision of the century.
The high court found for Milligan unanimously, establishing as a constitutional bedrock Garfield’s proffered principle that civilian courts must try civilians wherever those courts are open, and ordered Milligan’s release. Although re-indicted by a civilian grand jury, Milligan was not re-prosecuted; he resumed his law practice and died near Fort Wayne, Indiana on December 21, 1899.
** Milligan studied law in Ohio, his native soil; his class of nine also included Edwin M. Stanton — Lincoln’s War Secretary during the events of this post. Milligan himself reflected that “I should have probably been hung” but for his fortuitous ancient friendship with Stanton.
† Court precedents with names like Furman v. Georgia are most familiar to us, signifying two disputing parties; by contrast, the phrase ex parte (by/for the party) theoretically indicates a decision issued on behalf of the named party, without need of any opposing party’s intervention. (Ex parte Quirin is another notable death penalty case using this terminology.)
While the ex parte locution was once a common one for habeas corpus appeals, such cases were in practice almost invariably contested by some organ of the state — as Milligan’s was.
Witness Wycliffe, who told them the truth;
For in good nature he greatly warned
To mend their wickedness and sinful works.
Who these sorry men damned his soul
And overall lolled him with heretics’ works!
-Piers Plowman’s Creed*
Sawtre was a follower of John Wycliffe, the Biblical translator and church reformer 16 years dead as we lay our scene.
Wycliffe anticipated much of Luther’s later critique of the Catholic Church. His call to study Scripture directly without the intercession of doctors in Rome touched a spiritual thirst; his summons to apostolic poverty for the wealthy vicars of Christ was a message with a ready audience.
Lollardy did not immediately manifest as an outlaw movement; it had many adherents among England’s elites and even the royal household. Although the papacy had declared various Wycliffe doctrines heretical in that prelate’s time, England had shown little appetite for calling an Inquisition — a step that would project papal authority into the kingdom.**
But with a ferocious ecclesiastical pushback and a change in the occupancy of the throne,† the English state gradually shifted over the course of the 1390s and 1400s towards recognizing Wycliffe’s principles as heresy — and towards treating that heresy into a capital crime. Through spectacles like Sawtre’s burning, Lollards were gradually made to understand that the price of their scruples might run all the way to martyrdom.
This was novel territory for English jurisprudence, and part of a centuries-long European transition towards treating doctrinal dispute as capital crime. There are only a bare handful of alleged quasi-precedents in English history, sketchily documented — like the unnamed apostate deacon burnt to ashes for Judaizing. It was only as late as William Sawtre that Old Blighty clearly established the practice and legal machinery for putting men and women to death for heresy.
Many Lollards capitulated as they came under pressure. This was true of our man Sawtre, a humble parish vicar. When put to questioning by the bishop in 1399, Sawtre initially recanted his unorthodox skepticism as to the transubstantiation of communion bread into Christ’s own literal body — a doctrinal mystery that would be a tougher and tougher sell to dissidents yet to come.
But upon moving from Lynn to London where he served at St. Osyth’s, Sawtre relapsed — and some stirring moved his soul to vindicate himself in the face of mortal peril.
Charged before Parliament, Sawtre now defended his heresies under close questioning by the Archbishop of Canterbury, Thomas Arundel. Arundel was even then pressuring this same Parliament for a statute, which he did indeed soon receive — one with the ominous title De Heretico Comburendo, at last elevating heresy to a death penalty offense and making the bishops themselves the decisive arbiters on the matter. It is overtly and all-but-explicitly aimed at the Lollards.
divers false and perverse people of a certain new sect, of the faith of the sacraments of the church, and the authority of the same damnably thinking and against the law of God and of the Church usurping the office of preaching, do perversely and maliciously in divers places within the said realm, under the color of dissembled holiness, preach and teach these days openly and privily divers new doctrines, and wicked heretical and erroneous opinions contrary to the same faith and blessed determinations of the Holy Church, and of such sect and wicked doctrine and opinions they make unlawful conventicles and confederacies, they hold and exercise schools, they make and write books, they do wickedly instruct and inform people, and as such they may excite and stir them to sedition and insurrection, and make great strife and division among the people, and other enormities horrible to be heard daily do perpetrate and commit subversion of the said catholic faith and doctrine of the Holy Church …
the diocesans of the said realm cannot by their jurisdiction spiritual, without aid of the said royal majesty, sufficiently correct the said false and perverse people, nor refrain their malice, because the said false and perverse people do go from diocese to diocese and will not appear before the said diocesans…
[let] none within the said realm or any other dominions subject to his Roval Majesty, presume to preach openly or privily, without the license of the diocesan of the same place first required and obtained, curates in their own churches and persons hitherto privileged, and other of the Canon Law granted, only except; nor that none from henceforth anything preach, hold, teach, or instruct openly or privily, or make or write any book contrary to the catholic faith or determination of the Holy Church, nor of such sect and wicked doctrines and opinions shall make any conventicles, or in any wise hold or exercise schools; and also [let] none from henceforth in any wise favor such preacher or maker of any such and like conventicles, or persons holding or exercising schools, or making or writing such books, or so teaching, informing, or exciting the people, nor any of them maintain or in any wise sustain, and that all and singular having such books or any writings of such wicked doctrine and opinions, shall really with effect deliver or cause to be delivered all such books and writings to the diocesan of the same place within forty days from the time of the proclamation of this ordinance and statute.
Any Lollard not so complying could be arrested on the say-so of the diocesan bishop and tried for the offending heterodoxy; if convicted, the clergy was then empowered to hand the unfortunate fellow over to the civil authorities who were obliged to carry out an execution without any further inquiry or say-so. Judge, jury, and (virtually) executioner … the same as the guy waiting for you in the confessional.
[I]f any person … do refuse duly to abjure, or by the diocesan of the same place or his commissaries, after the abjuration made by the same person be pronounced relapsed, so that according to the holy canons he ought to be left to the secular court … [then] after such sentence promulgate shall receive, and them before the people in an high place cause to be burnt, that such punishment may strike fear into the minds of others, whereby, nosuch wicked doctrine and heretical and erroneous opinions, nor their authors … be sustained or in any way suffered.
With such wicked doctrine and heretical and erroneous opinions afoot Sawtre was not suffered to live even the enactment of the law that killed him: De Heretico Comburendo was passed only on March 10, but Sawtre was eight days’ dead by that point. It’s a bit unclear how the sentence was legally effected, but it would seemingly have proceeded under canon, not civil, law.
Both the law and the execution were great victories for the Church. “The king and the archbishop hurried to burn their victim to show that they could send a heretic to the stake whenever they wished, without relying on statute” Leonard Williams Levy writes. “Parliament could neither give nor take the authority to burn a heretic. If the scepter supported the miter, canon law prevailed.”
Be that as it may, the victims of the Lollard-burning period were not nearly so numerous as the chilling language of De Heretico Comburendo might lead one to anticipate. The next Lollard to go to the stake was John Badby in 1410; two merchants were executed in 1415, and the Lollard rebel John Oldcastle was burnt “gallows and all” in 1417. Another handful suffered in the 1420s. It’s thought that about 50 people overall (Lollards and otherwise) were executed as heretics from the enactment of De Heretico Comburendo until Henry VIII broke with Rome 133 years later — an occasion that made heresy-hunting a whole different animal.
* My artless rendering from the Middle English version given in D.A. Lawton in “Lollardy and the ‘Piers Plowman’ Tradition”, The Modern Language Review, Oct. 1981.
** Despite overall caution about the authority of Rome onto Albion’s soil, the English had no overall principled rejection of Inquisitors as such: they convoked such a tribunal to deal with Joan of Arc.
† The political situation in the realm was also been a factor: the usurper Henry IV had taken the crown only in 1399 by deposing, and later murdering, King Richard II. One readily supposes Henry’s keen interest in shoring up the loyalty of the church and keeping tabs on itinerant rabble-rousers, the latter of whom appear to have disproportionately skewed towards Richard’s faction. (All those heretics in the king’s household were in Richard’s household.)
This date, the second of July, would in 1914 have been the eve of the thirty-first birthday of Franz Kafka, so it seems a fit occasion — shall we call it the centennial? — to mark the death of the the character “Josef K.” in Kafka’s great novel The Trial. In this captivating work — it does not feel sufficient to call it a dystopia of the emerging bureaucratic state, although this story surely helped as much as any other to put the word Kafkaesque in the dictionary — K. has spent the whole novel since his arrest on his 30th birthday grappling with an absurd trial on charges he is never told and upon evidence he cannot know.
In the last, two insipid functionaries arrive at K.’s apartment to whisk him away to his death.
Historically, Kafka began this book in August 1914, a few weeks yet from our spurious dating. It was only published in 1925 — posthumously.
Chapter Ten: End
The evening before K.’s thirty-first birthday — it was about nine o’clock in the evening, the time when the streets were quiet — two men came to where he lived. In frock coats, pale and fat, wearing top hats that looked like they could not be taken off their heads. After some brief formalities at the door of the flat when they first arrived, the same formalities were repeated at greater length at K.’s door. He had not been notified they would be coming, but K. sat in a chair near the door, dressed in black as they were, and slowly put on new gloves which stretched tightly over his fingers and behaved as if he were expecting visitors. He immediately stood up and looked at the gentlemen inquisitively. “You’ve come for me then, have you?” he asked. The gentlemen nodded, one of them indicated the other with the top hand now in his hand. K. told them he had been expecting a different visitor. He went to the window and looked once more down at the dark street. Most of the windows on the other side of the street were also dark already, many of them had the curtains closed. In one of the windows on the same floor where there was a light on, two small children could be seen playing with each other inside a playpen, unable to move from where they were, reaching out for each other with their little hands. “Some ancient, unimportant actors — that’s what they’ve sent for me,” said K. to himself, and looked round once again to confirm this to himself. “They want to sort me out as cheaply as they can.” K. suddenly turned round to face the two men and asked, “What theatre do you play in?” “Theatre?” asked one of the gentlemen, turning to the other for assistance and pulling in the corners of his mouth. The other made a gesture like someone who was dumb, as if he were struggling with some organism causing him trouble. “You’re not properly prepared to answer questions,” said K. and went to fetch his hat.
As soon as they were on the stairs the gentlemen wanted to take K.’s arms, but K. said “Wait till we’re in the street, I’m not ill.” But they waited only until the front door before they took his arms in a way that K. had never experienced before. They kept their shoulders close behind his, did not turn their arms in but twisted them around the entire length of K.’s arms and took hold of his hands with a grasp that was formal, experienced and could not be resisted. K. was held stiff and upright between them, they formed now a single unit so that if any one of them had been knocked down all of them must have fallen. They formed a unit of the sort that normally can be formed only by matter that is lifeless.
Whenever they passed under a lamp K. tried to see his companions more clearly, as far as was possible when they were pressed so close together, as in the dim light of his room this had been hardly possible. “Maybe they’re tenors,” he thought as he saw their big double chins. The cleanliness of their faces disgusted him. He could see the hands that cleaned them, passing over the corners of their eyes, rubbing at their upper lips, scratching out the creases on those chins.
When K. noticed that, he stopped, which meant the others had to stop too; they were at the edge of an open square, devoid of people but decorated with flower beds. “Why did they send you, of all people!” he cried out, more a shout than a question. The two gentleman clearly knew no answer to give, they waited, their free arms hanging down, like nurses when the patient needs to rest. “I will go no further,” said K. as if to see what would happen. The gentlemen did not need to make any answer, it was enough that they did not loosen their grip on K. and tried to move him on, but K. resisted them. “I’ll soon have no need of much strength, I’ll use all of it now,” he thought. He thought of the flies that tear their legs off struggling to get free of the flypaper. “These gentleman will have some hard work to do”.
Just then, Miss Bürstner came up into the square in front of them from the steps leading from a small street at a lower level. It was not certain that it was her, although the similarity was, of course, great. But it did not matter to K. whether it was certainly her anyway, he just became suddenly aware that there was no point in his resistance. There would be nothing heroic about it if he resisted, if he now caused trouble for these gentlemen, if in defending himself he sought to enjoy his last glimmer of life. He started walking, which pleased the gentlemen and some of their pleasure conveyed itself to him. Now they permitted him to decide which direction they took, and he decided to take the direction that followed the young woman in front of them, not so much because he wanted to catch up with her, nor even because he wanted to keep her in sight for as long as possible, but only so that he would not forget the reproach she represented for him. “The only thing I can do now,” he said to himself, and his thought was confirmed by the equal length of his own steps with the steps of the two others, “the only thing I can do now is keep my common sense and do what’s needed right till the end. I always wanted to go at the world and try and do too much, and even to do it for something that was not too cheap. That was wrong of me. Should I now show them I learned nothing from facing trial for a year? Should I go out like someone stupid? Should I let anyone say, after I’m gone, that at the start of the proceedings I wanted to end them, and that now that they’ve ended I want to start them again? I don’t want anyone to say that. I’m grateful they sent these unspeaking, uncomprehending men to go with me on this journey, and that it’s been left up to me to say what’s necessary”.
Meanwhile, the young woman had turned off into a side street, but K. could do without her now and let his companions lead him. All three of them now, in complete agreement, went over a bridge in the light of the moon, the two gentlemen were willing to yield to each little movement made by K. as he moved slightly towards the edge and directed the group in that direction as a single unit. The moonlight glittered and quivered in the water, which divided itself around a small island covered in a densely-piled mass of foliage and trees and bushes. Beneath them, now invisible, there were gravel paths with comfortable benches where K. had stretched himself out on many summer’s days. “I didn’t actually want to stop here,” he said to his companions, shamed by their compliance with his wishes. Behind K.’s back one of them seemed to quietly criticise the other for the misunderstanding about stopping, and then they went on. The went on up through several streets where policemen were walking or standing here and there; some in the distance and then some very close. One of them with a bushy moustache, his hand on the grip of his sword, seemed to have some purpose in approaching the group, which was hardly unsuspicious. The two gentlemen stopped, the policeman seemed about to open his mouth, and then K. drove his group forcefully forward. Several times he looked back cautiously to see if the policeman was following; but when they had a corner between themselves and the policeman K. began to run, and the two gentlemen, despite being seriously short of breath, had to run with him.
In this way they quickly left the built up area and found themselves in the fields which, in this part of town, began almost without any transition zone. There was a quarry, empty and abandoned, near a building which was still like those in the city. Here the men stopped, perhaps because this had always been their destination or perhaps because they were too exhausted to run any further. Here they released their hold on K., who just waited in silence, and took their top hats off while they looked round the quarry and wiped the sweat off their brows with their handkerchiefs. The moonlight lay everywhere with the natural peace that is granted to no other light.
After exchanging a few courtesies about who was to carry out the next tasks — the gentlemen did not seem to have been allocated specific functions — one of them went to K. and took his coat, his waistcoat, and finally his shirt off him. K. made an involuntary shiver, at which the gentleman gave him a gentle, reassuring tap on the back. Then he carefully folded the things up as if they would still be needed, even if not in the near future. He did not want to expose K. to the chilly night air without moving though, so he took him under the arm and walked up and down with him a little way while the other gentleman looked round the quarry for a suitable place. When he had found it he made a sign and the other gentleman escorted him there. It was near the rockface, there was a stone lying there that had broken loose. The gentlemen sat K. down on the ground, leant him against the stone and settled his head down on the top of it. Despite all the effort they went to, and despite all the co-operation shown by K., his demeanour seemed very forced and hard to believe. So one of the gentlemen asked the other to grant him a short time while he put K. in position by himself, but even that did nothing to make it better. In the end they left K. in a position that was far from the best of the ones they had tried so far. Then one of the gentlemen opened his frock coat and from a sheath hanging on a belt stretched across his waistcoat he withdrew a long, thin, double-edged butcher’s knife which he held up in the light to test its sharpness. The repulsive courtesies began once again, one of them passed the knife over K. to the other, who then passed it back over K. to the first. K. now knew it would be his duty to take the knife as it passed from hand to hand above him and thrust it into himself. But he did not do it, instead he twisted his neck, which was still free, and looked around. He was not able to show his full worth, was not able to take all the work from the official bodies, he lacked the rest of the strength he needed and this final shortcoming was the fault of whoever had denied it to him. As he looked round, he saw the top floor of the building next to the quarry. He saw how a light flickered on and the two halves of a window opened out, somebody, made weak and thin by the height and the distance, leant suddenly far out from it and stretched his arms out even further. Who was that? A friend? A good person? Somebody who was taking part? Somebody who wanted to help? Was he alone? Was it everyone? Would anyone help? Were there objections that had been forgotten? There must have been some. The logic cannot be refuted, but someone who wants to live will not resist it. Where was the judge he’d never seen? Where was the high court he had never reached? He raised both hands and spread out all his fingers.
But the hands of one of the gentleman were laid on K.’s throat, while the other pushed the knife deep into his heart and twisted it there, twice. As his eyesight failed, K. saw the two gentlemen cheek by cheek, close in front of his face, watching the result. “Like a dog!” he said, it was as if the shame of it should outlive him.
The Trial can be enjoyed (if that’s the right word) in a public domain English translation here.
The theory behind the bill — and this was particularly relevant to St. Louis, a border port right across from Illinois and accessible via the Mississippi River to the whole Midwest — was that kidnappers could more easily ply their nefarious trade by carrying their hostages over a convenient border and exploiting the respective states’ inability to coordinate with one another. By elevating interstate kidnapping to a federal felony, the idea was to put manhunts into the hands of the FBI, whose jurisdiction was the entire United States.
The Lindbergh case provided just the right impetus for Congress to advance into law a bill that might otherwise have died quietly in committee. There’s just something to be said for being the one with a plan at the right time … even though the Lindbergh baby was found dead four miles away from the house he was plucked out of, and probably never crossed a state line himself.
At any rate, the Lindbergh Law also made kidnapping alone a capital crime, even if the abductee was not harmed. And it is for this that Arthur Gooch ascended into barstool trivia.
Gooch’s life and case are the focus of this 125-page Master’s thesis (pdf), but the long and short of it is that Gooch and a buddy named Ambrose Nix were on the lam after busting out of the Holdenville, Okla., jail, and ended up heading south to Texas.
They committed a robbery in Tyler, Texas on November 25, 1934. The next day, while stopped with a flat at a service station in Paris, Texas — close by the Texas-Oklahoma border — two policemen approached the suspicious vehicle. In the ensuing struggle, Nix managed to pull a gun on everyone and force the subdued cops into the back of their own patrol car, which the fugitives then requisitioned to high-tail it over the Oklahoma border. There they released their captives unharmed. There had never been a ransom attempt.
A month later, Gooch was arrested in Oklahoma — while Nix died in the shootout, leaving his partner alone to face the music.
Arthur Gooch was a career criminal, and the fact that he violated the Lindbergh Law was easy to see, but his crime also wasn’t exactly the scenario that legislation’s drafters had foremost in mind. In fact, Gooch also underscores one of the oft-unseen dimensions of the death penalty in practice: the discretionary power of prosecutors and judges at the intake end of the whole process.
Gooch attempted to plead guilty to his charge sheet, but his judge, former Oklahoma governor Robert Lee Williams, refused to accept it. Williams was explicit that his reason was that the Lindbergh Law’s language required a jury verdict to impose a death sentence.
By contrast, in October of 1934 — a month before the legally fateful confrontation at the Paris service station — a black farmhand named Claude Neal suspected of the rape-murder of a white girl was dragged out of protective custody in Alabama and taken across the adjacent Florida state line, where an angry mob lynched him. Despite the urging of the NAACP, FDR’s Attorney General Homer Stille Cummings completely refused to interpret Neal’s abduction as a Lindbergh Law kidnapping. The two cases even turned on the same phrase of the Lindbergh statute: interstate kidnapping “for ransom or otherwise.” While Cummings decided pre-emptively that “or otherwise” didn’t cover lynch law, one of his U.S. attorneys would go to the Supreme Court in January 1936 to argue for a broad interpretation of that phrase in the context of Gooch’s appeal.
But even without a comparison to Claude Neal’s murder, the justice of executing Arthur Gooch was hotly disputed by a vigorous clemency campaign. The chance intercession of a state line had elevated a small-time crime committed further to avoiding arrest into a capital offense, basically on a technicality. “It would be a rotten shame to hang that boy when a short jail term is his desert,” one Oklahoma City society woman argued to the Jeffersonian Club. “Gooch was given an application of the poor man’s law.” It seems clear that for Judge Williams as for President Roosevelt (who denied Gooch’s clemency appeal) the result was heavily influenced by the political exigencies of pushing a tough-on-crime standard, and by Gooch’s previous history as a crook. (He’d broken out of jail in the first place because he was a member of a group of local hoods in Okmulgee that committed several armed robberies.)
Gooch was philosophical at the end. “It’s kind of funny — dying,” he mused. “I think I know what it will be like. I’ll be standing there, and all of a sudden everything will be black, then there’ll be a light again. There’s got to be a light again — there’s got to be.” We can’t speak to what Gooch saw after everything went black, but it definitely wasn’t “all of a sudden”: Oklahoma’s executioner, Richard Earnest Owen, was an old hand with his state’s electric chair, but the federal execution method was hanging, which Owen had never before performed (and never would again). Gooch took 15 minutes to strangle at the end of the rope.
Arthur Gooch on the gallows
* The Kelley kidnapping, unsolved for several years, eventually traced to the strange character Nellie Muench. Readers (at least stateside ones) who follow that trailhead should be sure to keep an eye out for the cameo appearance of Missouri judge Rush Limbaugh, Sr. — grandfather of the present-day talk radio blowhard.
On this date in 2003, the state of Oklahoma executed Scott Hain for a Tulsa carjacking that netted $565 and two dead bodies.
The Hain that was strapped down on the gurney that evening was a 32-year-old with a nebbishy middle manager look, high forehead pursuing his hairline to the scalp’s horizon where it had drawn up a wilting rearguard picket fringing an egg-bald pate.
But back in 1987 when he stuffed Laura Lee Sanders and Michael Houghton into the boot of their own car and set it ablaze, Scott Hain was 17 years, 4 months, and 4 days of age.
American jurisprudence through the ages has regularly compassed the execution of minors, sometimes astonishinglyyoung ones. But come the late 20th century the still-ongoing execution of a few men (they were all men) for crimes they had committed when still only boys was a deeply contentious subplot of the death penalty drama.
Because of the protracted judicial processes, there was no longer any question at this point of boosting wispy teenagers into electric chairs as South Carolina had done in 1944. The Scott Hains of the world were grown men by the time they died: grown up on death row.
They were, to be sure, nearly men when they killed as well.
The prevailing jurisprudence at this point was the 1989 Supreme Court decision Stanford v. Kentucky, which set the minimum age for death penalty eligibility at 16.*
And so 17- and even sometimes 16-year-old offenders not considered equal to adult responsibility** in most other spheres of life continued to face the executioner through the 1990s and into the 21st century, a period when the death penalty itself picked up steam.
This became an increasingly awkward situation. For one thing, it placed the United States internationally among a very small handful of countries with unsavory human rights records. Maybe it was a matter of the raw numbers; on the day Stanford came down, the United States had executed only 114 people in its “modern” era, and just three of them were juvenile offenders. For the 1990s, there would be an average of 48 executions every single year, and (again on average) one of those would be a juvenile offender.
But even as the numbers grew, only 20 of the 38 death penalty states permitted such executions, and only three states — Virginia, Texas, and Hain’s Oklahoma — actually conducted any such executions at all after 1993.
Foes argued over those years that the diminishing scope of the juvenile death penalty reflected an emerging national consensus against it — which could in turn be held to create a constitutional prohibition under the 8th Amendment’s proscription of “cruel and unusual punishment.”
Most of the death-sentenced juveniles made similar arguments in the course of their appeals, hoping to be the case that would catch the conscience of the court. Hain’s appellate team made this argument, too. It didn’t take, like it didn’t for any of the others who tried it.
Except, it was taking. Those evolving standards of decency were about to evolve right past a tipping point: in 2004, the justices accepted a new case from Missouri that placed the juvenile death penalty question before it once more.
The nine-member high court’s inconstant swing vote Anthony Kennedy — who had once upon a time (call it a youthful indiscretion) voted with the majority in Stanford to permit juvenile executions — wrote the resulting 2005 decision Roper v. Simmons, barring the execution of juvenile offenders in the United States.†
Scott Hain remains the last person executed in the United States for a crime committed in his childhood.
* The bright-line court ruling was necessary because states had indeed death-sentenced even younger teenagers. For example, Paula Cooper was condemned to death by an Indiana jury for a murder committed at age 15; her sentence was commuted to a prison term, and she was eventually released in 2013. The victim’s grandson, Bill Pelke, notably supported Cooper and has become a leading anti-death penalty activist in the intervening years.
** The notion of age 18 as the age of majority predominates worldwide, but is of course as arbitrary as any other, and has not been the threshold selected in all times and places. The Austrian empire declined to execute Gavrilo Princip for assassinating Archduke Ferdinand in 1914 and precipitating World War I because it could not establish that he had reached the age of 20 when he did so.
† Among the notable cases affected was that of Lee Boyd Malvo, the underaged collaborator of Beltway sniperJohn Muhammad. Malvo was being considered for capital charges in Virginia at the time Roper came down.
In reality no advocate could be of material service to the accused, save in the most exceptional cases. The men who organized the Holy Office knew too well what they wanted to leave open any possibilities of which even the shrewdest advocate could take advantage, and it was admitted on all hands as a recognized fact that there was no method of defence save disabling the witnesses for the prosecution. It has been seen that enmity was the only source of disability in a witness, and this had to be mortal — there must have been bloodshed between the parties, or other cause sufficient to induce one to seek the life of the other. If, therefore, the case rested on witnesses of this kind, their testimony had to be rejected and the prosecution fell. As this was the only possible mode of escape, the cruelty of withholding from the prisoner the names of the adverse witnesses becomes doubly conspicuous. He was forced to grope around in the dark and blindly name such persons as he imagined might have a hand in his misfortunes. If he failed to hit upon any who appeared in the case, the evidence against him was conclusive, as far as it went. If he chanced to name some of the witnesses, he was interrogated as to the causes of enmity; the inquisitor examined into the facts of the alleged quarrel, and decided as he saw fit as to the retention or the rejection of their testimony. Conscientious jurists like Gui Foucoix and inquisitors like Eymerich warned their brethren that as the accused had so slender a chance of guessing the sources of evidence, the judge ought to investigate for himself and discard any that seemed to be the product of malice; but there were others who sought rather to deprive the poor wretch of every straw that might postpone his sinking. One device was to ask him, as though casually, at the end of his examination, whether he had any enemies who would so disregard the fear of God as to accuse him falsely, and if, thus taken unawares, he replied in the negative, he debarred himself from any subsequent defence; or the most damaging witness would be selected and the prisoner be asked if he knew him, when a denial would estop him from claiming enmity. It is easy to imagine other tricks by which shrewd and experienced inquisitors could save themselves the trouble of admitting the accused to even the nugatory form of defence to which alone he was entitled. As to allowing him to call witnesses in his favor, except to prove enmity of the accusers, it was never thought of in ordinary cases. By a legal fiction, the inquisitor was supposed to look at both sides of the case, and to take care of the defence as well as of the prosecution. If the accused failed to guess the names of enemies among the witnesses and to disable their testimony, he was condemned.
In England, under the barbarous custom of the peine forte et dure, a prisoner who refused to plead either guilty or not guilty was pressed to death, because the trial could not go on without either confession or defence. Cruel as was this expedient, it was the outcome of a manly sense of justice, which based its procedure on the rule that the worst felon should have a fair opportunity to prove his innocence. Far worse was the system of the Inquisition, which was equally resolved that its culprits should have no such easy method of escape as a refusal to plead. It had no scruples as to proceeding in such cases, and the obstinacy of the accused only simplified matters. The refusal was an act of contumacy, equivalent to disobeying a summons to appear, or it was held to be tantamount to a confession, and the obdurate prisoner was forthwith handed over to the secular arm as an impenitent heretic, fit only for the stake. The use of torture, however, rendered such cases rare.
The enviable simplicity which the inquisitorial process thus assumed in the absence of counsel and of all practical opportunities for defence can perhaps best be illustrated by one or two cases. Thus in the Inquisition of Carcassonne, June 19, 1252, P. Morret is called up and asked if he wishes to defend himself against the matters found in the instructio or indictment against him. He has nothing to allege except that he has enemies, of whom he names five. Apparently he did not happen to guess any of the witnesses, for the case proceeded by reading the evidence to him, after which he is again asked thrice if he has anything further to say. To this he replies in the negative, and the case ends by assigning January 29 for the rendering of sentence. Two years later, in 1254, at Carcassonne, a certain Bernard Pons was more lucky, for he happened to guess aright in naming his wife as an inimical witness, and we have the proceedings of the inquest held to determine whether the enmity was mortal. Three witnesses are examined, all of whom swear that she is a woman of loose character; one deposes that she had been taken in adultery by her husband; another that he had beaten her for it, and the third that he had recently heard her say that she wished her husband dead that she might marry a certain Pug Oler, and that she would willingly become a leper if that would bring it about. This would certainly seem sufficient, but Pons appears nevertheless not to have escaped. So thoroughly hopeless, indeed, was the prospect of any effort at defence, that it frequently was not even attempted, and the accused, like Arnaud Fabri at Carcassonne, August 26, 1252, when asked if he wished a copy of the evidence against him, would despairingly decline it. It was a customary formula in a sentence to state that the convict had been offered opportunity for defence and had not availed himself of it, showing how frequently this was the case.
Samuel Wright and George Townley both murdered romantic partners late in 1863. Both were tried, convicted, and condemned to hang in very short order and both the subjects of intense pressure for a crown commutation of sentence.
Only one of those men hanged. It was 150 years ago today.
Townley lived near Manchester and was courting a young woman named Bessie Goodwin from Derbyshire. Described as a man from a respectable upper middle class family with “refined manners,” and an intelligent linguist* to boot, Townley was nevertheless a rung or two below Miss Goodwin on the wealth and status ladder.
He was, accordingly, frustrated of his designs when the young lady accepted a clergyman’s proposal and broke off her previous engagement to Townley. Despite being disinvited by ex-fiancee, Townley took a train to her village and pressed his company on her. The two went for a walk that evening, and Townley stabbed her in the throat — a fact which he confessed on the scene to the first person who responded to the commotion and found Miss Goodwin staggering towards her home with a fatal gash in her neck.
In the great tradition of weird stalkers everywhere, Townley then helped the Good Samaritan carry the dying woman home, and kissed her tenderly, all the while bemoaning to arriving gawkers his guilt. “She has deceived me, and the woman who deceives me must die,” he responded chillingly to the inquiries of his would-be father-in-law. “I told her I would kill her. She knew my temper.”
This is all a very bad hand to deal a defense barrister.
Having little to work with, his superstar attorney — remember, the family had money — went with an insanity defense, aided by the lunacy diagnosis of prominent psychiatrist Forbes Winslow.** There was some history of insanity in his family, and everyone seemed agreed on the point that Townley didn’t set out with the intent to commit murder, but impulsively — madly? — took that course as he realized during his interview that he would surely not be putting a ring on that.
The legal standard of the time gave no purchase to this sort of thing. Townley’s judge instructed the jury to find insanity only if he “was under delusions … [and] supposed a state of things to exist which did not exist, and whose diseased mind was in such a condition that he acted upon an imaginary existence of things as if those things were real.” This is the M’Naghten rule, a historically pivotal and also highly restrictive insanity definition dating to 1843.
On December 12, 1863 Townley was sentenced to death for the murder, with the hanging scheduled for the approaching New Year’s Day. According to the London Times report the next week (Dec. 18), the sentence “has not made the slightest alteration in his demeanour. He partakes of his meals heartily, sleeps well, and repeatedly asserts that he was perfectly justified in taking away his victim’s life, and that he feels no remorse for the deed.”
Nevertheless, Townley’s well-off family and friends had enough pull to pry open a previously little-known legal escape hatch.
Upon the judge’s own request, the crown empaneled a committee to adjudicate Townley’s sanity for his mercy petition. But a sloppily written law actually allowed any two doctors plus any two magistrates to issue a formal certification of madness which would compel the prisoner’s removal to the asylum. Townley’s own solicitor simply assembled himself a quartet so minded and presented their finding to the Home Secretary, forcing his hand — to a great deal of public outrage once the obscure mechanism became known.
“Good friends and abundant means may give a convicted criminal unexpected advantages over an ordinary offender,” the Times complained in an editorial. (Jan. 27, 1864) Plus ça change.
Samuel Wright was not a man of means or linguistic gifts, but a bricklayer who lived in a Waterloo Road public house in Surrey, on London’s southern outskirts.
On December 13, 1863, he slashed the throat of his live-in lover Maria Green after they’d both been on a drinking bout. On December 16, mere three days later, Wright voluntarily pleaded guilty and received a death sentence.
A hue and cry for Wright’s sentence to be abated soon arose among London’s working classes, especially in the wake of Townley’s commutation. Wright had a good reputation, while Green was known for her violent temper. Wright intimated that she had menaced him with a knife during a quarrel.
Was this not a case like George Townley’s, only more so?
The contrast in the fates between the two murderers did not flatter. The crimes were analogous even to the mode of slaying.† If anything, the rich man’s suggested a more egregious context: Townley’s victim appeared more sympathetic, and Townley had gone out of his way to track her down in order to kill. Why was Townley’s heat of passion “insanity” but Wright’s was motive and deliberation?
The Home Secretary offered his sympathy but not his mercy. After all, Wright himself agreed that he intentionally killed Green. “To commute the sentence on the grounds on which it has been pressed would, in fact, be to lay down a rule of law as to the distinction between murder and manslaughter contrary to that which is well established,” wrote a Home Office spokesman on Jan. 7 in response to three separate petitions submitted on Wright’s behalf. Maybe they thought the same thing about Townley … but that decision was out of their hands.
Friends, for me have persevered,
To save me from the gallows high;
Alas! for me there is no mercy,
Every boon they did deny,
While others who was tried for murder,
And doomed to die upon a tree,
Through friends and money has been pardon’d
who deserved to die as well as me.
But, oh! my friends, you must acknowledge
what I say has oft been said before.
Some laws are made to suit two classes,
One for the rich, one for the poor;
So it is with me and Townley,
A reprieve they quickly granted he,
He was rich, and I was poor, —
And I must face the fatal tree.
The mood of the populace for the hanging at Horsemonger Lane Gaol this date in 1864‡ was decidedly ugly. On the night of the 11th, when it became clear that the many last-ditch bids for commutation — directed not only at the Home Secretary but even to Queen Victoria and even to the Prince of Wales appealing for a boon on the occasion of his first son‘s January 8 birth§ — a handbill circulated in the prison’s neighborhood entreating its denizens to protest the execution by shuttering all windows. “Let Calcraft and Co. do their work this time with none but the eye of Heaven to look upon their crime.”
Indeed this summons was widely obeyed.
A small crowd only turned out for the occasion, and shouted their disgust for the proceedings: “Shame!” and “Judicial murder!” and “Where’s Townley?” Even many months later, at the controversial August 10 hanging of Richard Thomas Parker, the crowd chanted Townley’s name, now the emblem of the unequal justice of the law.
One diarist’s entry for the day recalled that “[t]he blinds were down in all the neighbouring streets and the military were called out in case of an attempted rescue. When the unfortunate man appeared on the scaffold, loud cries of ‘Take him, take him down’ were heard in every direction, to which the unhappy man responded by repeated bows to the multitude, he still continued bowing and was actually bowing when the drop fell.”
The language of the law that permitted Townley his backdoor commutation was revised by Parliament within weeks.
As to Townley himself, another panel appointed by the Home Office found him fully cogent, which meant that officially, he had become insane after his death sentence and the insanity abated thereafter. While this finding theoretically reinstated the death penalty, actually hanging him after these circumstances was thought to be inhumane, and he was reprieved. One supposes there must have been some thought for the potential disturbance Townley’s hanging would have occasioned.
On February 12, 1865 — a year and change after escaping the noose that claimed Samuel Wright — George Townley hurled himself headlong off a high staircase onto a stone floor in Pentonville Prison, where he had been transferred as an ordinary inmate. He died on the spot.
† An additional unflatterering comparison point to Derbyshire contemporaries: a proletarian named Richard Thorley had been hanged in Derby in 1862 for a very similar crime: he slashed his girlfriend’s throat when she tried to break up with him.
‡ Among the very last public hangings at Horsemonger Lane Gaol. All UK hangings were conducted behind prison walls by 1868.
§ This infant, Prince Albert Victor, is the royal eventually identified with Jack the Ripper by a particularly inventive hypothesis.
On December 7, 1982, a unit of army commandos entered the Guatemalan hamlet of Dos Erres.* There it authored one of the signature atrocities of the bloody Guatemalan Civil War.
This was the Guatemala of Efrain Rios Montt, once a junior officer during the CIA-backed 1954 coup that set in motion decades of civil strife.
Relative brutality in that conflict waxed and waned over the years. In 1982, the now-General Efrain Rios Montt overthrew another general and went full werewolf. “A Christian has to walk around with his Bible and his machine gun,” Rios Montt infamously remarked. And more than walk them: the general’s policy was a you’re-either-with-us-or-with-the-terrorists hard line called Frijoles y Fusiles, “beans and shooting.” Campesinos who were with Rios Montt got the beans.
Shortly before this date’s atrocity, a column of Guatemalan soldiers were ambushed by leftist guerrillas, killing 21. Those guys were going to get the fusiles — them, or any convenient peasants who might hypothetically be on friendly terms with them.
Dos Erres, a remote jungle village of 60 families, was the settlement nearest where the rebels were thought to be operating. The little town had already drawn the ire of the army by resisting recruitment to civil defense patrols.
Late on the night of December 6, 1982, 20 members of Guatemala’s Kaibiles commandos set aside their special forces uniforms and disguised themselves as guerrillas, in green t-shirts and civilian trousers and red armbands. Ostensibly their mission was to recapture the rifles the rebels had seized from the ambushed convoy, which were supposed to be stashed in Dos Erres.
Hiking two hours into the jungle to reach their target, the commandos crept into the still-sleeping settlement at 2 in the morning. With the support of a 40-man regular army detachment to seal Dos Erres’s perimeter, the commandos stormed into residences and drug bewildered townspeople out, herding the men into a school and the women and children into a church.
That commenced an all-day litany of horrors for the residents of what was about to become the former village. Dos Erres was wiped off the map by the end of it.
One of the senior lieutenants on the mission raped a woman, and other commandos immediately availed themselves of the implied license to abuse women and girls. By the end of it, the last sobbing women and children were led out to the forest and machine-gunned en masse.
They were by then the last survivors, save for a little boy who managed to escape into the jungle. Throughout the course of the 7th of December, the Kaibiles brought villagers old and young to the edge of the town well. “As they were brought to the well, they were asked, ‘where are the rifles?’,” one of the participants later described. “They said nothing about rifles, and they were hit on the back of the head with a sledgehammer, and thrown in the well.” Every commando had to participate, so that all were implicated.
Commando Gilberto Jordán drew first blood. He carried a baby to the well and hurled it to its death. Jordán wept as he killed the infant. Yet he and another soldier, Manuel Pop Sun, kept throwing children down the well.
The commandos blindfolded the adults and made them kneel, one at a time. They interrogated them about the rifles, aliases, guerrilla leaders. When the villagers protested that they knew nothing, soldiers hit them on the head with a metal sledgehammer. Then they threw them into the well.
“Malditos!” the villagers screamed at their executioners. “Accursed ones.”
“Hijos de la gran puta, van a morir!” the soldiers yelled back. “Sons of the great whore, you are going to die!”
[Commando Cesar] Ibañez dumped a woman in the well. [Favio] Pinzón, the cook, dragged victims there alongside a sub-lieutenant named Jorge Vinicio Sosa Orantes. When the well was half-filled, a man who was still alive atop the pile of bodies managed to get his blindfold off. He shouted curses up at the commandos.
“Kill me!” the man said.
“Your mother,” Sosa retorted.
“Your mother, you son of the great whore!”
Pinzón watched as the infuriated Sosa shot the man with his rifle and, for good measure, threw a grenade into the pile. By the end of the afternoon, the well overflowed with corpses.
The commandos left town the next morning with six captives: the rebel who had been forced at gunpoint to guide the Kaibiles to Dos Erres in the first place (he would be executed in the field); three teenage girls (the soldiers that night would take turns raping them, then strangled them the next day); and two very small boys (these were returned to the Kaibiles base). A few days later, the army returned and razed the remains of the devastated town to the ground. Only recently has the site been excavated and its many victims’ remains cataloged for proper burial.
The tragedy of Dos Erres became public in the 1990s. Five soldiers who participated in the butchery have each been sentenced to 6,060 years in prison just for this one incident, but there were many more like it in Guatemala in those years — many more people who were put to Frijoles y Fusiles.
A 1990s truth commission after the war pegged the total number of civilians killed during the war above 200,000, mostly indigenous Mayans and (as was the case for most at Dos Erres) mestizos. “State forces and related paramilitary groups were responsible for 93% of the violations documented.”
The truth commission also found that the “government of the United States, through various agencies including the CIA, provided direct and indirect support for some state operations.” Indeed, supporting death squads againstleftists in Central American dirty wars was overt U.S. policy during the 1980s; just days before Dos Erres, U.S. President Ronald Reagan returned from a Latin American tour and told reporters that Rios Montt, whom he had just met, was “totally dedicated to democracy in Guatemala.”
“They’ve been getting a bum rap” from human rights nabobs, Reagan averred.
In the fullness of time that rap would eventually encompass Rios Montt’s own remarkable conviction for crimes against humanity and (since the Mayan population was targeted en masse) genocide in a landmark case that’s still being appealed as of this writing. (The May 2013 verdict against Rios Montt was immediately overturned; the case is obviously extremely politically sensitive.) In a separate case, he’s been charged specifically with responsibility for the Dos Erres massacre.
U.S. President Bill Clinton formally apologized for Washington’s role in Guatemala after the truth commission’s findings were issued in 1999.
The PBS radio program This American Life has an hour-long documentary about Dos Erres here; a companion ProPublica series has even richer (and more horrifying) detail.
* Named for its founders, two men named Ruano and Reyes, the name literally meant “two Rs”.
There is one example of this violation in Virginia, of a most striking and shocking nature; an example so horrid, that if I conceived my country would passively permit a repetition of it, dear as it is to me, I should seek means of expatriating myself from it. A man, who was then a citizen, was deprived of his life thus: From a mere reliance on general reports, a gentleman in the house of delegates informed the house, that a certain man had committed several crimes, and was running at large perpetrating other crimes; he, therefore, moved for leave to attaint him; he obtained that leave instantly … Without being confronted with his accusers and witnesses, without the privilege of calling for evidence in his behalf, he was sentenced to death, and was afterwards actually executed. Was this arbitrary deprivation of life, the dearest gift of God to man, consistent with the genius of a republican government? Is this compatible with the spirit of freedom? This, sir, has made the deepest impression in my heart, and I cannot contemplate it without horror.
On this date in 1778, attainted Revolutionary War-era outlaw Josiah Phillips was hanged in Virginia.
Contrary to Randolph’s recollection, the execution took place according to a regular jury verdict convicting Philips for stealing 28 hats and five pounds of twine — felony theft by the Bloody Code inherited from England.
Even so, it was the Act of Attainder voted unanimously by the Virginia legislature that stuck in the popular memory, so much so that even the likes of Randolph, a lawyer by trade and later the first Attorney General of the independent United States, misstated* it as the proximate cause of Phillips’s execution.
Another inheritance from the mother country, Acts of Attainder — wherein the legislature declares some party guilty of a crime and declares punishment without benefit of trial — were going right out of style in the twilight of the 18th century. The eventual U.S. Constitution would flatly abolish the practice; Britain herself has not enacted one since 1798.
So it comes as some surprise to see that Phillips was outlawed** at the instigation of no less a person than old Mr. Inalienable Rights himself, Thomas Jefferson. Jefferson’s Bill of Attainder gave Philips and his band a June 1778 deadline to turn themselves in voluntarily, or else they
shall stand and be convicted and attainted of high treason, and shall suffer the pains of death, and incur all forfeitures, penalties and disabilities prescribed by the law against those convicted and attainted of High-treason: and that execution of this sentence of attainder shall be done by order of the General court to be entered as soon as may be conveniently after notice that any of the said offenders are in custody of the keeper of the public gaol …
And that the good people of this commonwealth may not in the mean time be subject to the unrestrained hostilities of the said insurgents, be it further enacted that from and after the passing of this act it shall be lawful for any person with or without orders, to pursue and slay the said Josiah Philips and any others who have been of his associates or confederates at any time.
Now in fairness, Josiah Phillips was no ordinary hat-thief, regardless of what the charge-sheet read. He was a Tory marauder who led a gang of outlaws/guerrillas/terrorists who lurked in the Dismal Swamp and had just weeks before repelled a Commonwealth militia dispatched by Governor Patrick Henry.
For Henry, who sought the attainder, and for Jefferson the Phillips band looked like a clear security threat. “The delays which would attend the proceeding to outlaw the said offenders according to the usual forms and procedures of the courts of law would leave the said good people for a long time exposed to murder and devastation,” in the words of the attainder. And indeed, the rebellious colonies — ultra-patriotic Pennsylvania especially — had had regular recourse to Acts of Attainder against Tory loyalists over the span of the American Revolution. (Actual executions under attainders were extremely rare.)
However, the inconsistency of such an instrument long associated with monarchical tyranny with its author’s more usual Rights of Man fulminations had Jefferson still defending the Phillips attainder as late as 1815.
Whatever might have best suited Josiah Phillips, the last word on the matter in American jurisprudence has belonged to the overwhelming sentiment of his fellow-Founders … like James Madison, whose Federalist no. 44 flatly avers that Bills of Attainder “are contrary to the first principles of the social compact, and to every principle of sound legislation.”
* Randolph himself, as Virginia’s attorney general, made the call not to use the attainder against Phillips because of Randolph’s own discomfort with it. But his “misremembering” was convenient to a later interest in excoriating Patrick Henry.
** Arguably contravening Virginia’s existing 1776 Declaration of Rights. “In all capital or criminal prosecutions a man has a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgment of his peers.”