Emperor Pic and Florence were together in a vehicle crossing from the British Columbia border in September, 1922, when an attempt to serve a warrant resulted in a chase in which Picariello’s son (fleeing in another vehicle) was shot through the hand. Shortly thereafter, Picariello and Lassandro sought out the shooter, police constable Steve Lawson, and in the resulting confrontation Lawson himself was shot dead.
The circumstances of this fatal encounter are murky and disputed; Lassandro initially claimed to have pulled the trigger, and this helped to get she along with Picariello condemned to death for the crime. As her execution neared — under circumstances we’ll get into momentarily — she amended that statement.
“We agreed that it would be best for me to take the responsibility and say that I did it, as women don’t hang in Canada and he would get off,” she said in a telegram to the Justice Minister (according to Jana Pruden‘s Edmonton Journal story of Oct. 9, 2011). “I never shot a gun in my life — was always afraid of them.”
But in the public debate over her prospective hanging, the question wasn’t so much about Lassandro not being a triggerman but about her not being a man.
The discomfiture still usual in our own day over putting a woman to death was certainly present in early 20th century Canada. No woman had hanged anywhere in Canada since Hilda Blake 24 years years prior.
But Florence Lassandro found an unexpected hand cutting away this lifeline: the women’s movement.
Canadian women had won suffrage in most provinces during the war years, and only in 1921 had the first woman been seated in Parliament. The next movement milestone on the horizon (it would be achieved in 1929) was winning juridical recognition of women as legal “persons”.
So the women’s movement in 1920s Canada was deeply sensitive to any appearance of special pleading which appeared to place adult women on any footing lesser to adult men. A Prohibition gangster who shot a cop would surely be hanged if a man; indeed, Emilio Picariello, slated to die on the same morning as Florence Lassandro, had no real hope of clemency. So wasn’t Florence Lassandro’s claim on mercy nothing but the old sentimental paternalism that women were trying to escape?*
“I also desire to protest against the pernicious doctrine that because a person who commits a murder is a woman that person should escape from capital punishment,” wrote Emily Murphy, Canada’s (and the British Empire’s) first female magistrate. “As women we claim the privileges of citizenship for our sex, and we accordingly are prepared to take upon ourselves the weight of the penalties as well.”
An Alberta provincial barrister agreed, if a bit condescendingly: if “women will occupy themselves with all those things (law, Bench, franchise, etc.), taking the places side by side with men as their equal in all things, including even part in the framing and administration of our own laws, surely women should be equally subject to those laws in the event of their offending against them.” (Both quotes from Westward Bound: Sex, Violence, the Law, and the Making of a Settler Society.)
So Florence Lassandro was subject to those laws indeed.**
Early on the morning of May 2, Emilio Picariello (about whom, just go prove the point, we’ve barely spoken) went first to the gallows, scornfully refusing the hood. Minutes after he swung, Lassandro — visibly stricken with fright — followed.
“Why do you hang me when I didn’t do anything?” she implored of the official witnesses. “Is there not anyone who has any pity?”
No one answered.
“I forgive everyone.”
And then she hanged.
Twelve months later, Prohibition was repealed in Alberta.
As a somewhat digressive aside, Paul Friedland has made the case that men experiencing a very gender-specific shock at seeing women attending executions was instrumental in the gradual removal of once-public executions behind prison walls.
** Lassandro’s fellow-Italians had her back where her fellow-women did not, and they argued — not unreasonably — that Canada already had a de facto practice of never executing women and it was awfully convenient that everyone was now so high-minded about scrapping taboo once there was a poor Italian immigrant in the dock.
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 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 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.
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.”
“It is unjust that that which is rightly judged should result in prejudice to us and bring damage to others …”
-Edward II, letter concerning the Pierre Vigier case
One is like to reckon the phenomenon of the interminabledeath penaltyappeal a modern construct, product of the present day’s moral confusion or juridical inefficiency.
It’s been right about 700 years exactly since Pierre Vigier was hanged in the February-April neighborhood, in the year of our Lord 1312, for his impolitic sentiments on the governance of his native province. This medieval execution went with a very modern-sounding 12 years of indeteminate appeals.
Still, it is true what they say — “The past is a foreign country: they do things differently there.” In this foreign country, Gascony by name, they did the hanging first … and then did the appeals.
Our source here (virtually the only source short of plumbing the archives) is Joseph Kicklighter’s “English Bordeaux in conflict: the execution of Pierre Vigier de la Rousselle and its aftermath, 1312-24″ from the Journal of Medieval History, no. 9 (1983).
And the source of all the judicial chaos was the bizarre situation of one king as a rival king’s vassal.
Gascony at this time was a sort of feudal leftover of the Angevin Empire whose Plantagenet descendants were still kings of England. This remaining Plantagenet patrimony* in southwestern France was a going source of conflict between the realms, the most recent of which had been expedientlysettled by making the English king also Duke of Gascony … and (with respect to Gascony) the French king his liege lord.
The territory was worth the “submission”: ducal Gascony’s fertile land gave England a bounty in crops and wine. And the inevitable rivalry over sway in Gascony easily knocked on to the courts. As Barbara Tuchman put it in A Distant Mirror,
[t]he King of France still retained superior sovereignty under the formula of superioritas et resortum, which gave the inhabitants the right of appeal to the ultimate sovereign. Since his decisions were more than likely to go in their favor against their English overlord, and since the citizens, knowing this, exercised the right frequently, the situation was an endless source of conflict.
It was during such a conflict, when the rival factions of the Gascon capital of Bordeaux had the city in virtual anarchy as they jockeyed for power under the nominal lordship of English king Edward II, that the onetime royal castellan Pierre Vigier de la Rouselle apparently dumped on one of the new officials in conversation with a couple of informants.
The municipal government arrested Vigier and had him hanged — quickly, before Vigier’s inevitable attempted appeal to Parlement could save him.
(This all went down just a couple months before Edward II suffered a Gascon humiliation closer to home, when the Gascon nobleman Piers Gaveston, Edward’s dear friend and suspected lover, was executed by rival English lords.)**
Vigier’s aggrieved sons did pursue the appeal (it is they who provide posterity the circumstances of Pierre’s condemnation, so handle the story with care: one latter-day hypothesis is that Vigier was an outright rebel against the new appointees). Inevitably, the French backed their claim, allowing them undercut Edward’s ducal authority.
From there, the matter sank into an intractable mire of feudal Europe’s overlapping political authorities and factional rivalries. Parlement decreed some penalties. King Philip remitted some of them as a diplomatic gesture. The sons renewed their complaint. Bordeaux authorities tried to put the matter to bed by persecuting Vigier’s persecutors, only to be slapped down by an indignant King Edward. Persons were seized only to be ordered released, and estates likewise. Just as there was no single unambiguous authority to adjudicate it, there was no single wrongdoer to investigate, no single injury to repair (besides the matter of honor, there was the dead man’s property, and the fact that he was buried in unconsecrated ground), and no single arrangement of interested parties between the Vigier sons on the one side and the Plantagenet king on the other.
Edward seems to have taken particular affront at this imposition on his routine authority, and one must bear in mind that at this stage even the concept of sovereignty as we think of it today was simply not on the map. In some ways, the French appeals policy was pioneering it.
But as the suit bumped up and down or got kicked down the road by a Parlement that was probably enjoying its sport, Edward tried to dispose of it through such expedients as harassing its supporters and attempting to bankrupt the Vigiers. All this, naturally, just got rolled into the messy ol’ case.
Only time itself finally ended the appeal … in March 1324, King Charles IV announced the indefinite postponement of all ducal litigation at the Parlement of Paris becase of a mounting Anglo-French crisis which would soon lead to the brief War of Saint-Sardos. But even during the war, the court continued to deal with some aspects of the case; and the appeal was still under judgment when the Anglo-French feudal relationship was resumed with the accession of Edward III to the English throne.† It seems likely … Parlement had dropped the case by the 1330’s … in all probability, the Vigier case had lost the critical importance with which the king-duke and his officials had regarded it for so long. One might, with some justification, wonder why the appeal had ever enjoyed such attention.‡
“It was not the dynastic question that brought about the war,” wrote the historian T.F. Tout. “The fundamental difference between the two countries lay in the impossible position of Edward in Gascony.”
** Potentially topical to this digressive connection: Edward’s loyal aide in Bordeaux, a gentleman by the name of Arnaud Caillau, may have been a cousin of Piers Gaveston. Edward certainly had a supportive Gascon faction that his own resentful alleged vassals were frequently keen to harass; maybe the whole Vigier intervention just struck a little too close to home.
‡ Lest we misrepresent Kicklighter, he does go on to attempt to explain this hypothetical wonder as “a certain indication of the limited power of the English in Gascony.” I prefer my own stopping-point.
The Admiralty’s most notorious mutiny this side of the Bounty was actually a far bloodier affair. Dig the description from one of the conspirators who later turned state’s evidence.
“The captain,” said he, “was very severe with the men, who were all good seamen, and they were determined to either run the ship on shore and desert, or else take her by force. This had been in their minds for months before it happened. At last,” said he, “on a dark night, when the young lieutenant had the watch, our minds were made up. A party went to the cabin-door, knocked down the sentry, and entered it. The captain was in his cot, and he was soon overpowered. We threw him out of the cabin-window. Another party threw the officer of the watch over the larboard quarter, but he, being young and active, caught hold of the hammock-stanchion, when one of the men cut his hands off, and he soon dropped astern. The first lieutenant had been ill and keeping his cot, but on hearing the noise, he came up the hatchway in his shirt, when one of the carpenter’s crew cut him down with an axe, and he was sent overboard with several others.”
(There’s a fine audio lecture about this mutiny in the context of maritime class violence at the Bristol Radical History Group, which reminds that in a context where most of a ship’s manpower was marshaled with the violence of involuntary conscription, mutiny bids were a regular feature of Old Blighty’s maritime empire. London Times archives are available from 1785, and searches on the word “mutiny” in those early years reveal dozens of episodes — and those were just the reported ones.)
After making sharkmeat of that tyrannical captain, 27-year-old Hugh Pigot, the Hermione mutineers got drunk, and then delivered the frigate to the Spanish.
A Royal Navy vessel aptly named the Surprise* was able to surprise the wayward warship and cut her out of the Venezuelan harbor Puerto Cabello. The Hermione was then aptly renamed the Retaliation (and later, Retribution). Then, the British put the ominous word into action with a global manhunt for the mutineers.
Nearly thirty men ultimately hanged for the affair, though that meant that most of those involved escaped the noose.
And so we come at last to our day’s protagonist, one of the Hermione mutineers who was at length recognized in the breakaway former British colonies now constituting themselves the United States of America.
Upon catching this intelligence, British envoys demanded the extradition of this character — who now claimed to be an American citizen by the name of “Jonathan Robbins” — under the terms of the recent and controversial Jay Treaty. After several months under lock and key without any American charge against him, Robbins/Nash eventually had a habeas corpus hearing before Judge Thomas Bee, who decided† that this “American citizen” was no such thing. With an okay from the Adams administration, Bee had the man delivered to the crown.
Nash was immediately shipped down to the British colony of Jamaica, put on trial on Aug. 15 (he had no defense), and hanged on Aug. 19.
Little could the Waterford-born seaman imagine the legacy he bequeathed his fake-adopted country.
I know my rights, man
The Nash extradition became a political firestorm in the U.S., with anti-British Jeffersonian Democratic-Republicans decrying the Federalist administration’s handling of the case. For the infant republic, formulating juridical precedent on the fly, this played as a separation-of-powers issue: was it within the president’s power to fulfill the treaty unilaterally, absent executing legislation passed by Congress? Was it within a judge’s purview to approve an extradition request without the constitutionally assured right to trial by jury?
Sounding eerily contemporary, New York Rep. Robert Livingston denounced a system whereby “a citizen of the United States might be dragged from his country, his connections and his friends, and subjected to the judgment of an unrelenting military tribunal.” Less measured, a Philadelphia Aurora headline announced: “BRITISH INFLUENCE threatens destruction of these United States!” (Source of both quotes)
Though it was surely not decisive, this issue provided great fodder in the 1800 elections swept by the Democratic-Republicans and standard-bearer Thomas Jefferson. Jefferson’s home state of
Virginia, the stronghold of inimical feeling to Great Britain … passed a law forbidding under heavy punishment a magistrate to be instrumental in extraditing any person out of the state. Thus desertions from British ships in a Virginian port became a regular event. Captains of British vessels sailing to United States ports in no long time would meet their men strolling in the streets, furnished with naturalization papers, who set them at defiance, for their arrest was impossible.
“This passage of history,” the otherwise hostile-to-Nash source is obliged to concede, “tells unfavourably on the character of the treatment of British seamen … the Discipline was harsh and oppressive, one of pure repression. The consideration of others, enforced by benevolence and duty, was often regarded as weakness.”
Hard to imagine why anyone would want to mutiny! It calls to mind, at the end of this passion play as at its start, the words supposed to have been hurled at the Hermione‘s doomed Captain Pigot as he pled with his assailants for mercy: “You’ve shown no mercy yourself and therefore deserve none.”
A real reactionary
Despite the electoral slam dunk, the real last word on the case ultimately belonged to the administration’s defenders.
Among these rose in Congress a first-term — for he would only serve a single such term — member of the House of Representatives also from the Old Dominion, John Marshall.
Just months later, Marshall would be one of outgoing President Adams’s “midnight judges” appointed to the federal courts: in Marshall’s case, to the U.S. Supreme Court, where his epochal 34-year term as Chief Justice would shape the future evolution of American jurisprudence.
Rising on March 7, 1800, in defense of President Adams’s conduct in the Nash case, Representative Marshall gave a preview of the strong federalist perspective that would define his time on the bench. (Read it in full here.)
The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations … He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him.
This passage was exhumed from Congressional archives for citation in a 1936 Supreme Court case on federal supremacy, and has proceeded thence into a go-to bullet point for every latter-day defender of any arbitrary executive authority.
Of consequence (as Marshall might put it), Marshall’s speech about Nash gets an approving reference in Bush administration lawyer — and possible future extradition subject? — John Yoo‘s September 25, 2001 memorandum on “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them”.
Supreme Court Justice Clarence Thomas, too, quotes this phrase in his Hamdi v. Rumsfeld dissent, further to the doctrine that a man consigned to a presidential oubliette has no recourse to the courts; Justice John Harlan used it (with the rather grandiosely exaggerated qualifier that “from that time, shortly after the founding of the Nation, to this, there has been no substantial challenge to this description”) in his dissent in the Pentagon Papers case to claim that Richard Nixon could prevent the New York Times and Washington Post from publishing the embarrassing classified history of the Vietnam War.‡
So in this imperial age, Thomas Nash is more with us than ever he was. Who knows but what noxious monarchical theories are even now being buttressed with footnotes resolving to the vindictive execution of that obscure mariner two centuries past?
Given the vessel’s centrality in this popular series, there’s a book all about the colorful history of the Surprise. In reality, the Surprise — actually a captured French ship herself — was sold out of the service in 1802, prior to the notional 1805 setting of both the cinematic Master and Commander: The Far Side of the World and the book in the series when Jack Aubrey first commands her.
† Rightly, it’s generally presumed; “Robbins” is alleged (albeit by his self-interested executioners) to have confessed to being Nash before his execution. This entry garners the Wrongful Execution tag on the basis of its contested American jurisprudence.
‡ The limited aim of Marshall’s speech in context, and its subsequent (mis)appropriation, is the subject of an interesting and accessible-to-laypersons law review article here. (pdf) This tome gets a bit more into the weeds on the way the separation of powers operated practically as the Nash case unfolded in Judge Bee’s court.
Q. Why is divorce so expensive?
A. Because it’s worth it!
This date brings us a cautionary parable of the dangers of wedlock.
John Chiesly (or Chiesley, or Cheisly), an ill-tempered bloke with a wife he’d wished to put aside, had been ordered in arbitration to support her (and their 11-strong brood) to the tune of a £93 annuity.
“I have taught the President how to do justice,” Chiesly boasted as he was arrested.
That was on March 31, 1689.
On April 1, he was tried and convicted (torture was authorized “for discovering if ther were any accomplices, advysers, or assisters to him in that horrid and most inhumane act … yet the samen shall be no preparative or warrand to proceed to torture at any tyme hereafter, nor homologatione of what hes bein done at any tyme bypast”).
On April 3, he was drawn to execution at either Drumsheugh or at the Gallowlee, had the offending right hand cut off while still alive, then was hanged in chains with the murder weapon around his neck.
Then his spirit went on to haunt Dalry as “One-Armed Johnny,” until his remains were discovered and properly buried in 1965.
If you think this guy had relationship issues, consider the fate of his daughter, Rachel.
When her husband tried to ditch her, the woman now known as Lady Grange stalked him so relentlessly that Lord Grange kidnapped her, faked her death, and held her secretly imprisoned in the Hebrides for 15 years. (More in this pdf)
Now that is an expensive divorce.
* Chiesly’s murder orphaned George Lockhart, later a notable anti-union politician; George’s brother Philip Lockhart was himself executed for the 1715 anti-Hanoverian Jacobite rising.
One year ago today, China made to clean up its image — with public health advocates, if not with human rights advocates — by executing* its former Food and Drugs minister for economic crimes.
Zheng Xiaoyu, China’s drug regulation capo from 1994 to 2005 and only (“only”?) the fourth minister-level official to be put to death in China since the immediate aftermath of Mao Zedong’s reign, was sentenced for extracting bribes from pharmaceutical companies he nominally regulated in exchange for approving their worthless and/or unsafe products.
One bogus antibiotic he rubber-stamped killed ten in China before it was pulled from the market, but it was dangerous Chinese products exported abroad — including lethal pet food ingredients to the United States and a cough syrup that killed dozens in Panama — that lit a fire under the export-driven colossus. The court that rejected his appeal explicitly referenced Zheng’s danger to China’s international reputation — simultaneously shifting focus from structural weaknesses by individualizing them to Zheng’s personal failings.
On this same day it announced Zheng’s death, China anxiously unveiled plans to safeguard the food supply for its upcoming turn under the Olympic klieg lights. That acid test is now upon it: opening ceremonies are mere weeks away as of this writing.
It may have been a politically-driven execution and an unusually heavy sentence, but Zheng’s passing was exulted in China. Someone even tried to put his name on a rat poison — rejected for that most distinguished reason of modern capitalism, Zheng’s own intellectual property in his name.
For an interesting dive into the social and legal currents surrounding this case, check out this .pdf edition of Criminal Bar Quarterly.
* The method of execution was not announced, and to my knowledge has not been conclusively documented. Gunshot was the longtime standby for Chinese executions, but China has shifted heavily towards lethal injection in recent years; it’s generally assumed that Zheng suffered the latter fate.
On this date in 1999, America’s obesity epidemic met Florida’s death penalty politics in the ugly electrocution of Allen Lee “Tiny” Davis.
The reader will discern that Tiny earned his nickname ironically. Reportedly 159 kg (350 pounds) at his death, he’d put his ample heft to work bludgeoning a pregnant mother of two beyond recognition with a revolver handle back in 1982 … and then shooting to death the now-motherless two.
As his appeals meandered through the courts, Davis got fatter — and got high blood pressure, arthritis, hypertension and a wheelchair. Meanwhile, the death penalty was meandering its own way across the weird political chessboard of the Sunshine State.
For the American death penalty nowadays, it’s Texas and then everyone else … but time was that Florida was the capital of capital punishment.
It conducted the first “modern” involuntary execution in 1979. It had carried out three executions before anyone else had more than one. And when the the drip-drip-drip pace of one or two execution nationwide per year in the early 1980’s finally burst into a torrent, Florida led the way with eight of the 21 executions in 1984.
Not until late in 1986 did Texas overtake Florida in the body count sweepstakes.
Law-and-order Tampa mayor Bob Martinez won the governorship in 1986 on the promise that “Florida’s electric bill will go up.” There was a high-profile botch in 1990, and another in 1997 — flames shooting from the inmates’ heads. What was the state’s Attorney General going to do about it? “People who wish to commit murder, they’d better not do it in the state of Florida because we may have a problem with the electric chair.” Under pressure to move to lethal injection — the chair’s unsightly malfunctions were spawning legal and public relations nightmares that were gumming up the gears — the legislature voted nearly unanimously to keep Old Sparky.
And then along came a giant.
After three-quarters of a century and 266 jobs, Old Sparky was “falling apart” … and that was going to be a problem for a man of Davis’ carriage.
The killer’s lawyers argued that Davis was so fat he couldn’t conduct electricity efficiently and would be slowly cooked to death. According to Slate, Florida authorities were nervous that he’d break the chair during his electrocution and send a disconnected live cable scything into someone else in the room.
And it worked, in that it killed Tiny. But what a mess — especially when an ensuing Florida Supreme Court opinion once again upheld the constitutionality of electrocution, and a dissenting judge attached the photos on this page to his opinions. Naturally, they became a grisly Internet sensation.
Old Sparky’s custom-built successor would only manage this single execution before Florida finally got on the lethal injection bandgurney.
Or at least, it’s only managed one so far. Old electric chairs don’t die, they just fade away … and in Florida, Tiny Davis’s chair remains available for condemned prisoners who choose it. Since this date in 1999, none have.
On this date in 1535, Sir — later Saint — Thomas More kept his conscience at the expense of his head on Tower Hill.
For all More‘s greatness — as intellectual, polemicist, lawyer, statesman, father — none of his many gifts at the end could avail him beside his commitment to Catholicism at the dawn of the English Reformation.
Yet it is for those gifts that he cut such a commanding presence in his times, for those very reasons that his sovereign hounded his first citizen to assent to the divorce and remarriage he was fixed upon.
A devotee and friend of Erasmus from years before, More was in Henry’s more orthodox youth the king’s very scourge of Protestantism. His scatological invective against Martin Luther in Responsio ad Lutherum — much in the impolite tenor of Catholic-Protestant rhetoric continent-wide, it should be noted — is of the sort to crimson the cheeks of the milquetoast modern:
Since he has written that he already has a prior right to bespatter and besmirch the royal crown with shit, will we not have the posterior right to proclaim the beshitted tongue of this practitioner of posterioristics most fit to lick with his anterior the very posterior of a pissing she-mule until he shall have learned more correctly to infer posterior conclusions from prior premises?
Over that hairshirt, he wore the robes of state. But his engagement with the world had a selective bent that must have exasperated his colleague and predecessor as Lord Chancellor, Cardinal Wolsey. Orson Welles and Paul Scofield spar here in the definitive More hagiography A Man for All Seasons over the intellectual’s delicate refusal to dirty his gloves with the great matter of state before them — the annulment the king demanded of his marriage to the Queen (and More’s friend) Catherine of Aragon:
Peas in a pod, these two: Wolsey, the cleric grounded in realpolitik; More, the barrister who trusts to God. (More considered holy orders as a young man.)
Our man’s reputation for honesty in a den of hypocrites has certainly outrun Wolsey’s. Still, all More’s disdain for the deal-making that invests the sovereign majesty and all his foreboding for the relationship he had with his dangerous king were not quite enough to stop him accepting the Chancellorship and the opportunity to stamp out Lutheranism … knowing perfectly well the simultaneous thrust of Henry’s boudoir policy.
It all cuts quite a contrast to More’s (barely) pre-Reformation text, Utopia (available free from Project Gutenberg), which named a literary genre and described an imagined society of tolerant primitive communism that surely would have blanched at its inventor’s coming role in the state’s machinations:
I can have no other notion of all the other governments that I see or know, than that they are a conspiracy of the rich, who, on pretence of managing the public, only pursue their private ends, and devise all the ways and arts they can find out; first, that they may, without danger, preserve all that they have so ill-acquired, and then, that they may engage the poor to toil and labour for them at as low rates as possible, and oppress them as much as they please
[E]very man might be of what religion he pleased, and might endeavour to draw others to it by the force of argument and by amicable and modest ways, but without bitterness against those of other opinions; but that he ought to use no other force but that of persuasion, and was neither to mix with it reproaches nor violence* …
It’s not a given that More himself agrees with every (or even any) sentiment expressed in Utopia, but his most famous work’s criticism of the death penalty too liberally applied makes interesting reading.
[E]xtreme justice is an extreme injury: for we ought not to approve of those terrible laws that make the smallest offences capital … God has commanded us not to kill, and shall we kill so easily for a little money [i.e., execute petty thieves]? But if one shall say, that by that law we are only forbid to kill any except when the laws of the land allow of it, upon the same grounds, laws may be made, in some cases, to allow of adultery and perjury: for God having taken from us the right of disposing either of our own or of other people’s lives, if it is pretended that the mutual consent of men in making laws can authorise man-slaughter in cases in which God has given us no example, that it frees people from the obligation of the divine law, and so makes murder a lawful action, what is this, but to give a preference to human laws before the divine? and, if this is once admitted, by the same rule men may, in all other things, put what restrictions they please upon the laws of God.
This insistence on the supremacy of divine law over human institutions forms the basis of his objection to parliament’s overthrowing the papacy — which he expressed openly only after he was convicted by obviously perjured “jailhouse snitch” testimony
[Y]ou have no authority, without the common consent of all Christians, to make a law or Act of Parliament or Council against the union of Christendom.
Paul Scofield bears enjoying in the role in A Man for All Seasons:
More is sometimes suspected of desiring martyrdom since he marched so unerringly into it, but he also made every attempt to survive Henry’s demand the he affirm the royal remarriage and the king’s ecclesiastical supremacy by withdrawing silently from the public sphere rather than openly opposing it. More had by every account an enviable, downright happy life at his own hearth, and a tender and intellectual relationship with his favorite daughter Meg. (Meg corresponded with her father in prison, collected his works, and retrieved his head from London Bridge.)
But by his way of thinking — Meg tried to talk him out of it — he couldn’t swear to the Act of Succession acknowledging the king’s right to divorce Queen Catherine and disinherit her daughter Mary if Henry decided to force the choice. And in the king’s eyes, there was no middle ground for someone of the ex-Chancellor’s stature.
Henry could see to it, though, to cut his old friend a break and commute the sentence from drawing and quartering to “mere” beheading, here depicted in the past season of the Showtime series The Tudors.
More’s last moments as rendered here — the ironic remark at the foot of the scaffold, “See me safe up: for my coming down, I can shift for myself”;** his generous answer to the headsman’s plea for forgiveness — are well-documented. Undoubtedly, his sturdy martyr’s bearing, the extension of a life of joyful piety, helped cement for posterity the fame he held in life.
And that dying address — “I die the King’s good servant, but God’s first” — gathers in one sentiment free of bombast or self-pity the irreconcilable demands of conscience that would lead many thousands besides More to Henry VIII’s scaffolds, and rings equally true to less lethal challenges to the conscience in every land and time since.
Anne Boleyn, who caused More’s fate, shared it less than a year afterwards.
Thomas More was canonized by the Catholic Church in 1935 — the patron saint of politicians. Rather bizarrely, July 6 is also his feast day on the Anglican calendar, a tribute to the nearly universal regard his memory enjoys.
* Despite its religious tolerance, More’s Utopia — anticipating Dostoyevsky — maintains:
a solemn and severe law against such as should so far degenerate from the dignity of human nature, as to think that our souls died with our bodies, or that the world was governed by chance, without a wise overruling Providence … since a man of such principles must needs, as oft as he dares do it, despise all their laws and customs: for there is no doubt to be made, that a man who is afraid of nothing but the law, and apprehends nothing after death, will not scruple to break through all the laws of his country, either by fraud or force, when by this means he may satisfy his appetites.