1942: Ewald Schlitt, performative cruelty

Add comment April 2nd, 2019 Headsman

From Hitler’s Prisons: Legal Terror in Nazi Germany:

Despite the unprecedented legal terror [inside Germany], he [Hitler] continued to attack the legal apparatus as slow and formalistic, comparing it unfavourably with the unrestrained actions of the police. … In the autumn of 1941, he complained repeatedly in his private circle that the German judges passed too lenient sentences … In May 1941, he complained to Goebbels that inmates could emerge from prison ‘fresh and unused’, ready to act once more against the state — a statement which showed Hitler’s disregard for the brutal realities inside penal institutions. He had made a similar point a few months earlier to Himmler, telling him that criminals knew that inside penitentiaries ‘everything is nice, hygienic, nobody will do one any harm, the Minister of Justice vouches for that’.

Hitler’s simmering hostility towards the legal system blew up in spectacular fashion in the spring of 1941. The spark was yet another supposedly lenient court sentence. On 14 March 1942, the district court in Oldenburg found the engineer Ewald Schlitt guilty of having abused his wife so badly that she eventually died. However, the judges decided that Schlitt had not acted in cold blood but was liable to sudden violent fits of temper. Rather than condemning him to death as a ‘violent criminal’, the court sentenced Schlitt to five years in a penitentiary. When Hitler heard about this case, he exploded with rage. Ignorant of the details, he demanded that Schlitt be executed and took the court’s sentence as confirmation of the impotence of the judiciary. If there were any more such sentences, Hitler fumed in his private circle on Sunday 22 March 1942, he would ‘send the Justice Ministry to hell through a Reichstag law’. Hitler made no secret of his fury. On the very same day, he berated the acting Minister of Justice Schlegelberger on the telephone. Highly agitated, Hitler exclaimed that he could not understand why criminals were treated so leniently at a time when the ‘best’ German soldiers were dying at the front. Hitler threatened Schlegelberger with very serious consequences should the legal system fail to change.

The Reich Ministry of Justice immediately engaged in damage limitation, following Hitler’s outburst. Two days after his phone call, Schlegelberger wrote to Hitler to reassure him about the ruthlessness of the legal system: ‘My Fuhrer, I share your desire for the harshest punishment of criminal elements with the greatest conviction.’ To prove his point, Schlegelberger informed Hitler that the Schlitt case would be taken up by the Reich Court. The court duly delivered the desired result. On 31 March 1942, it quashed the original sentence against Schlitt and instead sentenced him to death, a decision which was immediately relayed to Hitler. Ewald Schlitt was guillotined two days later. Schlegelberger did not let the case rest here. He was concerned enough to inform the general state prosecutors, in a meeting on the day of Schlitt’s retrial, about Hitler’s threats. …

In previous protests by Hitler against court sentence he considered too ‘mild’, the file had been closed after the execution of the offender. But not this time. One of the reasons why Hitler did not let matters rest was his growing concern about the home front. In March 1942, the Nazi leadership knew that rations would have to be cut and evidently feared a backlash among the population … The Nazi leaders were convinced that the legal system would be unable to deal with any unrest. Thus, after Hitler had discussed the forthcoming cuts in rations with Goebbels on 19 March 1942, the two men went on to complain about the failures of the judiciary and to talk about the need for tougher measures on the home front. It was at this point that Hitler floated the idea of convening the Reichstag to give himself special powers against ‘evil-doers’, an idea he returned to after the Schlitt case. The cut in rations, the most serious during the entire war, was finally introduced on 6 April 1942, and caused great disquiet. Hitler’s apparent concern about this was betrayed in an extraordinary outburst at dinner on the very next day. Inevitably, his thoughts circled around the 1918 revolution and, with unprecedented ferocity, he vented his homicidal determination to prevent another ‘stab in the back’:

If a mutiny broke out somewhere in the Reich today, then he would answer it with immediate measures. To start with, he would:

a) have all leading men of an oppositional tendency … arrested at home and executed, on the day of the first report;

b) he would have all inmates in concentration camps shot dead within three days;

c) he would also have all criminal elements rounded up for execution within three days on the basis of the available lists, irrespective of whether they were in prison or at liberty at the time.

The shooting of this scum, which comprised a few hundred thousand people, would make other measures appear unnecessary, as the mutiny would break down by itself due to a lack of mutinous elements and fellow-travellers.

Only two weeks later, Hitler rang Goebbels and instructed him to take the very unusual step of summoning the Reichstag.

I also expect that the German jurisprudence understands that the nation is not there for them but they for the nation. That not the entire world is allowed to perish, in which also Germany is included, so that there is a formal right, but that Germany has to live, notwithstanding the formal interpretation of justice.

I have no understanding for it, just to mention an example, that for instance a criminal who married in 1937 and then mistreated his wife that she became mentally deranged and who then died of the results of his last mistreatment, is sentenced to 5 years of hard labor in a moment when 10,000 brave German men have to die in order to save the homeland from Bolshevism, that means to protect their wives and children.

I will take a hand in these cases from now on and direct the order to the judges that they recognize that as right what I order.

What German soldiers, German workers, peasants, our women in city and country and millions of our middle-class etc. do and sacrifice all only with the one thought of victory in their minds, then one can ask a congenial attitude for them who have been called by the people themselves to take care of their interests.

At present there are no self-styled saints with well-earned rights, but we all are only obedient servants in the interests of our people.

-From Hitler’s April 26, 1942 address to the Reichstag

On 26 April 1942, the Reichstag deputies assembled in Berlin, curious as to the purpose of the meeting. … The legal system, Hitler warned [in his address], must have only one thought: German victory. It was high time, he continued, that the legal system realised that it did not exist for its own sake, but for the nation. As an illustration of the inane approach of the judiciary, Hitler pointed to the Schlitt case. … The deputies cheered loudly, broke into chants of ‘Heil’ and then passed a resolution that explicitly exempted Hitler from ‘existing statutes of law’, giving him the right to remove from office and punish anyone ‘failing their duties’. Hitler was officially above the law.

Hitler’s attack in the Reichstag on 26 April 1942 received a mixed reception from the German public. Many Germans, it seems, supported Hitler’s views. But conservatives and members of the bourgeoisie started to voice some concerns about the threat to the rule of law. The German legal officials themselves were stunned … One senior judge exclaimed in private: ‘Out of shame, each judge has to hide his face from the public’. The officials feared that the attack would destroy public confidence int he independence of the judiciary and provide further incentives for the police to interfere in the legal process. To discuss measures which would increase Hitler’s confidence in the judiciary, the Reich Ministry of Justice held two meetings with senior regional officials in early May 1942 in Berlin. The meeting on 6 May was chaired by State Secretary Freisler. Hitler’s speech, he acknowledged, had hit the legal system like a ‘thunderstorm’. Freisler reminded the officials of the lessons which needed to be drawn: the legal officials had to become harder, focusing even more on retribution …

Hitler continued to complain in private about the weakness of the legal system. On 22 July, for example, he once more ranted at length about the judiciary, concluding that nobody resembled the jurist more closely than the criminal.

The Nazi leaders made sure that legal officials knew that Hitler was still unhappy. On the same day as Hitler’s latest private outburst, on 22 July 1942, Goebbels made an explicit speech to the officials at the People’s Courtk outlining the Nazi leaders’ criticism of the judiciary. Goebbels’s comments had special significance because, as he informed his listeners, Hitler had personally approved them. Goebbels began by complaining that many judges still had the wrong attitude, derived in large measure from their legalistic training. After referring in detail to several ‘unbearable’ sentences, Goebbels made crystal clear what was required from the judiciary. During the war, it was not important whether a judgment was fair or unfair; rather, it had to protect the state by eradicating the ‘inner enemies’: ‘The starting point is not the law, but the decision [that] this man has to disappear’.

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1739: Two French youths who murdered Choctaws

1 comment January 14th, 2019 Headsman

On this date in 1739, two French youths were executed by musketry in the French Louisiana colony for the murder of two Choctaws — a gesture of juridical diplomacy that didn’t work out as the musketeers hoped.

Our source for this unusual event is Patricia Galloway’s “The Barthelemy Murders: Bienville’s Establishment of the ‘Lex Talionis’ as a Principle of Indian Diplomacy” from the Proceedings of the Meeting of the French Colonial Historical Society, Vol. 8 (1985). The “Bienville” of Galloway’s title was Jean-Baptiste Le Moyne de Bienville, the French Colonial Governor of Louisiana. It was a post he had held intermittently since 1701, which was back when he and his brother Iberville were still exploring the region.*

Bienville was noted for his deft touch with the native inhabitants of the colony he proposed to govern; in Galloway’s words, he “seemed to have an intuitive grasp of the Indian concept of honor and to understand tribal power structures as no other governor did. In addition, he made it his business to learn and use Choctaw or the Choctaw-like Mobilian trade language in his dealings with the Indians — the only governor to do so.”

Be he ever so empathic, Bienville had a sticky wicket with this case of international violence, when each of the nations involved would have disposed of it very differently had it been a purely internal affair.

On the side of the Choctaw and indeed for all of the tribes of the southeast, the available evidence points to blood vengeance as the accepted response to homicide, but there was no governmental institution to carry it out, so the responsibility for the execution of a murderer fell upon the relatives of the victim … the European notion depended upon handing over regulatory powers to a legal institution; the Indian notion, on the other hand, assumed that familial sanctions would keep individuals in line.

It was a situation that demanded the full measure of Bienville’s diplomatic acumen. The Choctaw people were the largest of several native nations in the French colony, dominating the territory of the latter-day state of Mississippi. Years before the events in this post, Bienville had put them on his team by arming them against the British-allied Chickasaw … but in the late 1730s, Bienville was coming off a failed campaign against the Chickasaw, and with the British making diligent trading inroads with the Choctaw, it wasn’t necessarily a given that they would stick within the French sphere of influence. Indeed, there was a chief of rising stature within the Choctaw nation named Red Shoe whose calling card was pushing a bro-British turn.

Onto this delicate stage barged two Creole half-brothers, whom Galloway identifies as Philippe Alexandre (born in 1710) and a youth of whom we know only the surname Barthelemy (born in 1723): as Barthelemy was the name of the (step-, to Philippe) father who stood patriarch to the whole family, it’s the name by which the affair is known. According to the notes taken on the trial** by the colonial official Etienne Salmon as quoted by Galloway, their crime was motivated by nothing but opportunism and racial animus.

They went in a pirogue from Mobile to the Pascagoulas with a Negro slave to look for some food supplies, and there they found a Choctaw and his wife who were proposing to go to Mobile to trade some bear oil and a few deerskins, and who asked them for passage which they granted them. Contrary winds having cast them ashore on some neighboring islands, they went hunting there. The elder of the two brothers proposed to the Negro that he kill the husband and wife, saying that the savages were dogs, and that if they ran across Frenchmen in the same straits in their country they would not object to killing them. The Negro having rejected the proposition, saying that he had [no] reason at all to kill them, that they had done him no wrong, the two brothers discussed the same thing, and the elder told the younger that he would be doing a valorous deed, and that he would be regarded as a true man, if he made the attack; this child allowed himself to be so persuaded that on the following day at sunrise, while everyone was sleeping, or pretending to, the younger shot twice at the husband and his wife, and killed them.

This happened sometime during 1738. It took some months for the disappearance of these hunter-traders to become known to their communities, and for suspicion to fix on the young men involved. The French colony arrested the culprits and Bienville promised his allies “that justice would be done and would be carried out in Mobile before their appointed witnesses.” For Bienville, this meant the strict application of lex talionis through the French judicial mechanism.

The trial took place on January 10 … the two young men were condemned to die, while the Negro was dismissed as guiltless. The original sentence called for hanging, but to spare the dignity of the boys’ family it was changed to death by a firing squad. Salmon reported that the younger brother had no notion of guilt and was convinced that in the dangerous times then prevailing, he had performed a deed worthy of praise. Even Salmon believed that had the situation been different Bienville would have allowed the younger to escape death. But this was not to be, and the young men were returned to Mobile for execution, which took place before Choctaw witnesses on January 14.

The executions placated the Choctaw and, Bienville hoped, established an understanding that crimes between their nations would be properly satisfied by the offender’s nation more or less on the basis of lex talionis: an orderly and reciprocal life-for-a-life punishment.

Seven years ahead and Bienville had been retired to France when at last there came a Choctaw-on-Frenchmen murder to test the precedent. The new governor, Pierre de Rigaud de Vaudreuil, invoked the principle of this Barthelemy case: “We ask nothing of you but justice, since M. de Bienville had justice done you in 1740 [sic] for a man and woman that some Frenchmen had killed.”

The trouble that the French encountered here in having their claim recognized lay in their failure to understand the distinction made by the Choctaw between domestic and international law in a homicide case. The evidence is quite clear that the Choctaw were prepared to accept the notion of setting off the French deaths by an equal number of Choctaw deaths, but they expected the French, as the injured party, to carry out the killings themselves. If the French wanted the Choctaw to carry out the killings, they said, the French would have to persuade close relatives of the required victims to do it, or else there would be an unending train of vengeance set loose in the nation.

The French didn’t know who had actually murdered their three people and “the usual procedure in such cases was to substitute people who were of little use to the tribe or who for some reason already deserved death.” However, the French greedily bid for a political coup by demanding not a marginal victim but the pro-British chief Red Shoe himself. Unsurprisingly, they didn’t find any of Red Shoe’s relatives willing to turn executioner. The only thing left for the Choctaw to try was

killings committed against a group that was the enemy of both French and Choctaw. Therefore, to set off the deaths of three Frenchmen at the hands of pro-English Choctaws, the pro-French Choctaws attempted to fulfill the French demands in part by killing English traders. This was done in a raid on an English convoy which was being escorted by Red Shoe. After Red Shoe was murdered by stealth, two Englishmen were killed in an open attack, making up the required three deaths.

The French, however, completely missed the point of the Choctaw restitution and refused the two English scalps, insisting on two more Choctaw deaths … The deaths of the Englishmen did not go without notice on the pro-English side. Doubtless as a result of a symmetrical demand by the English, the [pro-English] Choctaw killed five French settlers on the Mobile River. These killings were followed by retaliatory raids by French-allied Choctaws on English trade convoys, killing two more English traders.

This is precisely the sort of blood vengeance spiral that Bienville had been trying to militate against, and it soon pulled the whole Choctaw nation into an outright civil war that killed some 800 people and brought the French into the field as well. Galloway once again:

Bienville’s intentions were good, and it is to the credit of the French that they carried out the execution of the half-brothers, against their inclinations, because this was the kind of justice that the Choctaw understood. Nor are the French to be blamed for expecting the Choctaw to make the same kind of concession to their notion of justice. The tragedy arose not because the Choctaw did not want to render justice at all, but because they had no vicarious legal mechanism to carry it out. In the end, therefore, they were forced into civil war because vengeance carried out by a Choctaw, on another Choctaw, in behalf of a third party not a Choctaw, did not leave the avenger free of punishment himself. Like other aspects of southeastern Indian culture, this one was so inconsistent with European understanding that it had to adapt or disappear, and although it did not actually disappear among the Choctaw themselves until 1823, the principle in dealings with white nations was firmly asserted in treaties from the time of the end of the Choctaw civil war. The Choctaw had dearly bought comprehension of Bienville’s principle with the weighty currency of culture change.

* Iberville and Bienville co-founded Fort Louis de la Mobile (present-day Mobile, Alabama) in 1702; this is where the executions in this post occurred. Bienville founded New Orleans in 1718.

** No original record of the trial survives; Salmon’s recollection is the best we’re going to do for primary sourcing.

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1584: Samuel Zborowski, dangerous precedent

Add comment May 26th, 2018 Headsman

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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2000: Ahmad Ismail Uthman Saleh and Ahmad Ibrahim al-Sayyid al-Naggar, renditioned

Add comment February 23rd, 2018 Headsman

On this date in 2000, Egypt hanged two Islamic militants whom it had been torturing for months. They were signal early victims of the U.S. Central Intelligence Agency’s program — more (in)famous after the September 11 freakout but in fact long predating it — of “extraordinary rendition”.

“Rendering” — chill word — involves kidnapping a target and transferring him to some other country, and it enables the state(s) in question to sidestep strictures at both ends of the pipe. When first authorized by U.S. President Bill Clinton in 1993, the proposed kidnapping of a militant was endorsed by Vice President Al Gore in these words:

That’s a no-brainer. Of course it’s a violation of international law, that’s why it’s a covert action. The guy is a terrorist. Go grab his ass.

Over the course of the 1990s, quibbles about international law would fade from the discussion, and “renderings” became routine, albeit still secretive.

“The fact is,” wrote former National Security Council counterterrorism official Richard Clarke, “President Clinton approved every snatch that he was asked to review. Every snatch CIA, Justice, or Defense proposed during my tenure as [Counterterrorism Security Group] chairman, from 1992 to 2001, was approved.”

Nor did they remain merely tools to make an extra-legal “arrest” for the benefit of American courts — as was the case when Gore purposed to “grab his ass.”

According to Stephen Grey’s history of the rendition program, Ghost Plane, the CIA by by the mid-1990s had a growing presence in Europe, particularly the Balkans as Islamic militants began congregating. With the 1998 onset of the Kosovo War, Langley moved from watching to … rendering.

And in this case, that meant grabbing asses for Egypt, where those asses would certainly be tortured.

Members of Egyptian Islamic Jihad, including the two men whose hangings occasion this post, Ahmad Ismail Uthman Saleh and Ahmad Ibrahim al-Sayyid al-Naggar, were kidnapped from Tirana, Albania in June 1998. They were then blindfolded, loaded onto a private plane, and flown to Egypt where they vanished for many months into the rough hands of its state security organ. Naggar, according to a lengthy November 20, 2001 Wall Street Journal story by Andrew Higgins and Christopher Cooper,*

was nabbed in July 1998 by SHIK on a road outside of town. He, too, was blindfolded and spirited home on a CIA plane. In complaints in his confession and to his defense lawyer, Mr. Abu-Saada, Mr. Naggar said his Egyptian interrogators regularly applied electrical shocks to his nipples and penis.

Mr. Naggar’s brother, Mohamed, said in an interview that he and his relatives also were — and continue to be — harassed and tortured by Egyptian police. He said he had suffered broken ribs and fractured cheekbones. “They changed my features,” Mohamed Naggar said, touching his face.

Naggar also complained of being hung from his limbs and locked in a cell knee-deep in filthy water. One of four Tirana militants captured in this operation, Naggar’s torture would yield crucial evidence for the 1999 “Returnees from Albania” mass trial,** and indeed his confessions still remain an essential primary text on the movement of Islamic extremists in the 1990s.

As for Saleh,

in August [1998], Albanian security agents grabbed him outside the children’s park. During two months of detention in Egypt, he was suspended from the ceiling of his cell and given electrical shocks, he told his lawyer.

Both these men were executed on February 23, 2000, in connection with terrorism-related death sentences that had been handed down in absentia prior to their kidnappings in Albania. All of the nine death sentences issued by the Returnees from Albania trial were applied to absent defendants, notably including Al Qaeda bigwig Ayman al-Zawahiri — a man who himself perhaps owes a large measure of his radicalization to Egyptian torturers.

CIA Director George Tenet testified in 2002 that his agency “had rendered 70 terrorists to justice” all told prior to September 11, 2001 (source). Most of the known third-country renditions of that period went to Egypt.

* As an index of the historical moment, it’s editorially interesting that this 3,600-word investigation ten weeks after 9/11 chooses to give its last word to an Egyptian state spokesman.

Egyptian presidential spokesman Nabil Osman said of such mass prosecutions: “Justice is swift there, and it provides a better deterrent. The alternative is to have cases of terrorism in this country dangling between heaven and earth for years.”

Mr. Osman brushed off torture claims by members of the Tirana cell, without commenting directly on their validity. Egypt permits alleged torture victims to seek remedies in civil court, he said. Members of the Tirana cell, however, have been held incommunicado with no way to file suit.

“Forget about human rights for a while,” Mr. Osman said. “You have to safeguard the security of the majority.”

This article was published right around the time the CIA captured Ibn al-Shaykh al-Libi, who was himself soon rendered into Egyptian hands so that he could be tortured into “confessing” a spurious link between Saddam Hussein and Al Qaeda; the “safeguarders” then shamelessly cited this absurd product of the rendition program as justification for the approaching Iraq debacle.

** Despite the nickname, not all “returnees” had been captured from Albania; others had been taken from Kuwait, Saudi Arabia, Yemen, and other countries. There were also 64 people charged in absentia.

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1948: Thomas Henry McGonigle, murder without a body

1 comment February 20th, 2018 Meaghan

(Thanks to Meaghan Good of the Charley Project for the guest post. -ed.)

The Latin legal term corpus delicti literally translates to “the body of the crime,” and many people are under the impression that it means the actual corpse of a murdered person and that no one may be convicted of murder without the victim’s body.

This is erroneous. Although it is true that no person can be convicted of murder without the corpus delicti, the term doesn’t mean the murdered person’s body but rather the body of evidence that proves a crime has been committed. Every criminal case must have the corpus delicti and, in most murder cases, that includes the victim’s body … but it doesn’t have to.

In the United States, murder-without-a-body prosecutions are not unheard of and happen with increasing frequency due to the advancement of forensic technologies like DNA analysis. Tad DiBiase, a former federal prosecutor, even wrote a book about them, titled No-Body Homicide Cases: A Practical Guide to Investigating, Prosecuting, and Winning Cases When the Victim Is Missing, which includes an appendix of over 400 cases.

On this day in 1948, Thomas Henry McGonigle was executed in California’s gas chamber in what was one of the earliest, perhaps THE earliest no-body homicide prosecution in the state. His victim was a fourteen-year-old high school sophomore named Thora Afton Chamberlain, and her body was never found and is believed to have been washed out to sea.

The prosecution would later call the case “one of the best organized and most intense investigations in the annals of the crime of kidnapping and murder.”

McGonigle, a married construction laborer with an arrest record for a variety of crimes including assault with intent to commit rape, was waiting in his car outside Campbell High School when classes ended for the day on November 2, 1945. Thora’s classmates saw her talking to him, and he offered her a job: he needed someone to babysit his sister’s children. It would only be for half an hour, he said.

For whatever reason, Thora trusted the stranger. Perhaps it was because he was dressed respectably in a Navy uniform with medals, including a Purple Heart. She didn’t know they weren’t his, that he’d never been in any branch of the military. He’d stolen the clothes and medals six weeks earlier.

Thora Chamberlain was never seen again after she got into the strange man’s car. McGonigle was an immediate suspect because of his record, and several witnesses identified him from a photo lineup, but in the immediate aftermath of Thora’s disappearance he skipped town.


Murderer and victim.

McGonigle told his wife he was taking a bus to Los Angeles, but in fact he hitchhiked to Illinois where his father lived. The FBI kept on his trail as he drifted across the country, registering in hotels under alias names. Finally he took an overdose of sleeping pills while on a bus bound for San Francisco, and was semiconscious on arrival. The Feds were waiting for him, but instead of jail they had to take him to the hospital for treatment. He was arrested upon discharge.

In custody, McGonigle gave a series of statements admitting culpability but providing wildly differing details as to what happened. He’d stabbed Thora. He’d shot her. He’d strangled her. She’d jumped from his car and was fatally injured. Her death was an accident. He hadn’t killed her at all; she was alive and well and working as a prostitute.

Although the entire truth about what happened is only known to Thora and her killer, the shooting story has the most evidence to support it.

McGonigle said he had shot Thora in his car and the bullet passed through her and got stuck in his car door. He said he’d removed the bullet and buried it under a certain tree in his yard, and also ripped out the vehicle’s bloodstained padding and upholstery and buried it near the construction site where he worked. There was a bullet hole in the door of McGonigle’s car, police recovered the bullet from under the tree where he said it would be, and ballistics later proved it had been fired from a .32 caliber revolver he owned. The police also found the ripped car upholstery at the indicated spot, and it was stained with human blood.

McGonigle lead the authorities to a coastal cliff in San Mateo County known as the Devil’s Slide. He said he’d thrown Thora’s body off the cliff, 350 feet down into the ocean. An extensive search revealed important, chilling evidence that may well have been the clincher: on the day of her abduction, Thora was dressed in her school colors of red and blue, including one pair of red socks and one pair of blue socks, one on top of the other. Searchers found both pairs wedged in separate crevices on the cliff face, and Thora’s parents identified them.

At the trial, prosecutor John McCarthy told the jury how it might have happened, painting a word picture of McGonigle killing Thora in a rape or attempted rape, then lifting her from his car by her armpits and dragging her along the ground to the edge of the Devil’s Slide. In the process her loafers come off and her socks are pulled down her feet. As she falls, they come off entirely and get stuck in the crevices of the cliff.

“In finding the socks,” McCarthy concluded, “the crime was solved.”

Given McGonigle’s string of confessions — which continued even at his trial — and the eyewitnesses who identified him, and the physical evidence that backed it all up, it’s no wonder the jury only deliberated half an hour. He was convicted on March 1, 1946.

While his conviction was under appeal he retracted his previous statements and denied everything. It was a frame-up, he said, all of it: he’d never confessed to anything and the FBI had planted all the evidence and the witnesses had lied. The police, meanwhile, stated he’d also confessed (over and over again…) to the murder of an unnamed “Negro waitress” from San Francisco and the only reason they weren’t going to charge him was because he was already under sentence of death.

The day he was executed, McGonigle wrote down a statement in longhand and left it with the warden:

I, Thomas Henry McGonigle, in this last testimony to the people declares [sic] that I did not shoot Thora Chamberlain and did not throw her body over a cliff and I have never made any such confession that I shot Thora Chamberlain in Santa Cruz County.

Santa Cruz County Sheriff Wallace P. “Bud” Hendrick didn’t agree. He witnessed the execution and later told reporters, “He threw his head back and gasped three times. Every time he gasped with that look of pain and death about him, I smiled. He was the most despicable … that ever walked the face of the earth. I only wish it could have taken longer.”

(Robert E. Cornish, a mad scientist and former child prodigy who made various Frankensteinian attempts to raise dead animals, wanted to try reviving a death row inmate after an execution. McGonigle volunteered himself for the experiment, but permission was denied.)

As for Thora, her body is presumed to have washed out to sea. She remains listed in missing persons databases, however, in the unlikely event that it turns up.

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1821: Tommy Jemmy executes Kauquatau

Add comment May 2nd, 2017 Headsman

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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1680: The wife of Abdullah Celebi, and her Jewish lover

Add comment June 28th, 2016 Headsman

At noon on Friday, 28 June 1680, people crowded into Istanbul’s Hippodrome, the city’s main public space, to stone to death a Muslim woman identified as ‘the wife of Abdullah Celebi’ for adultery with an infidel, and to witness the beheading of the Jew who was alleged to be her lover, a neighbourhood shopkeeper. Neighbours who had raided her home when they knew that the Jew was inside claimed to have found the couple having intercourse, which was doubly illicit: not only was she married, but sexual relations between Christian or Jewish men and Muslim women were forbidden by law. The accused denied any wrongdoing, but a mob dragged the two before the chief justice of the empire’s European provinces (known as Rumelia), Beyazizade Ahmet (d. 1686), who had previously been the main judge at Istanbul’s Islamic law (shariah) court.

Beyazizade accepted the testimony of the witnesses. Denying the accused a trial, he condemned the pair to death. Grand Vizier Kara Mustafa Pasha (d. 1683) reported his decision to Sultan Mehmet IV (r. 1648–87, d. 1693), who confirmed the sentence. The sultan attended the double execution in person and offered the man conversion to Islam, permitting him to die swiftly and with dignity by decapitation. Mehmet IV was the only sultan to order an adulteress to be executed by stoning during 465 years of Ottoman rule in Istanbul.

Indeed, public stoning of adulterers was such a rare event in medieval and early modern Islamic history that it is difficult to find any other examples of Islamic rulers punishing transgressors of sexual norms in this way.

This remarkable double execution comes to us by way of three Muslim chroniclers via “Death in the Hippodrome: Sexual Politics and Legal Culture in the Reign of Mehmet IV” by Marc Baer* — whom we have excerpted above. Regrettably, it’s entombed behind a paywall.

Our Ottoman interlocutors universally hold the stoning and beheading as a gross moral failure on the part of both judge and sultan. To begin with, all three chroniclers consider the accusation against the couple legally groundless: evidently the two were not really caught in flagrante delicto and both denied the liaison; this led Sari Mehmet Pasha** to sharply criticize the judge for even admitting neighbors’ suspicions as evidence — rather than punishing the accusers themselves for slander.

According to shariah it is incumbent to accept such testimony only when this situation is witnessed with one’s own eyes, meaning that the witnesses actually see the man insert his penis in and out of the woman ‘like inserting the reed pen in and out of the kohl pot’. But this is one of those impossible conditions set forth to ensure that such charges and their punishment are not frivolously made. Moreover, what is also needed is the woman’s own confession, or admission of guilt. Yet in this case she insistently denied the charge. The Jew likewise continuously claimed he had no knowledge of the affair.

Indeed, another astonished chronicler, Mehmet Rashid, believed that the law required such exacting pornographic specificity of a witness that no adulterers had ever been executed in the history Islam without their own confession. All describe the eyewitness standard as a shield, not a cudgel.

Moreover, even a demonstrable crime of the flesh — and even one committed by a Jew or Christian with a married Muslim woman — ought not result in capital punishment according to religious scholars of the period marshaled by Baer. (At least, not of the man: theoretically the woman could be stoned to death although in practice this never occurred either.)

What was bizarre and blameworthy to contemporaries was that an esteemed judge issued a verdict of literally historic harshness on such dubious grounds — and that the sultan seemed eager not to restrain, but to enforce it. Their narratives† cast Mehmet in a very dark light. “Let me see [the executions] in person,” he says in Silahdar Findiklili Mehmet Agha’s account — then makes a point to cross the Hellespont that morning from the Asian to the European side of the city the better to establish himself in a mansion commanding a view of the ceremonies.

At that time they brought the woman and the Jew to the place of execution. Being told, “Become a Muslim, you will be redeemed, you will go to Paradise,” the Jew was honored by the glory of Islam and then decapitated at the base of a bronze dragon

Wailing and lamenting, [the woman] cried, “They have slandered me. I am innocent and have committed no sin. For the sake of the princes, do not kill me, release me!” But they did not let her go.

Since the incident is unique even in Mehmet’s own long reign one draws larger conclusions at one’s own risk: hard cases make bad law. But it might be possible to perceive here a misjudgment by a man who, having grown to manhood out of the shadow of the dangerous harem that had lately dominated Ottoman politics felt keen to assert himself as a champion of realm and faith alike. (And his sex into the bargain.)

Baer presents Mehmet as an unusually eager proselytizer, always ready with a conversion blandishment whether for infidels captured in the empire’s European wars or for chance encounters with Jewish and Christian commoners. (He also forced a noted rabbi, Shabbatai Tzevi, to convert after the latter started getting some traction as a possible Messiah, and eventually began pressuring Istanbul’s numerous court Jews — physicians, advisors, and miscellaneous elite intelligentsia — to become Muslims as well.) And a Muslim movement had in recent years clamped down on carnivalesque diversions like taverns and public singing thought to trend toward impiety.

Three years later, Mehmet would (over)extend the Porte’s sway to the gates of Vienna. But Mehmet’s defeat there helped to collapse his own power back home, and he was deposed in 1687.

Our correspondents, writing in the wake of that reversal, unmistakably view affairs like this date’s executions as evidence of moral depravity that was punished by its authors’ subsequent misfortunes. Writing of the once-powerful judge, who chanced to die around the same time Mehmet fell, Defterdar concludes that “Beyazizade fearlessly persevered in the matter without scruple” until “the hearts of young and old turned away from him in disgust” and he fell “from the summit of his dignity.”

* Past and Present, Feb. 2011

** The imperial treasurer, himself executed in 1717.

† It does bear remarking that all three chroniclers wrote after Mehmet IV’s own fall.

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Themed Set: More like Drop-shire

Add comment March 22nd, 2016 Headsman

On moonlit heath and lonesome bank
The sheep beside me graze;
And yon the gallows used to clank
Fast by the four cross ways.

A careless shepherd once would keep
The flocks by moonlight there,*
And high amongst the glimmering sheep
The dead man stood on air.

They hang us now in Shrewsbury jail:
The whistles blow forlorn,
And trains all night groan on the rail
To men that die at morn.

There sleeps in Shrewsbury jail to-night,
Or wakes, as may betide,
A better lad, if things went right,
Than most that sleep outside.

And naked to the hangman’s noose
The morning clocks will ring
A neck God made for other use
Than strangling in a string.

And sharp the link of life will snap,
And dead on air will stand
Heels that held up as straight a chap
As treads upon the land.

So here I’ll watch the night and wait
To see the morning shine,
When he will hear the stroke of eight
And not the stroke of nine;

And wish my friend as sound a sleep
As lads I did not know,
That shepherded the moonlit sheep
A hundred years ago.

A.E. Housman, A Shropshire Lad

In English crime as in culture and commerce, the capital city can’t help but throw its shadow over the rest, and small wonder. Who could deny London her laurels as one of the world’s great hives of true crime: haunt of gallant highwaymen and underworld kingpins, skulking servants and reprobate lords, fantastical escape artists and the mysterious Whitechapel murderer. So it is for executions, too, although a site like ours might attribute London’s primacy as much to the convenient digitization of Old Bailey records as to the notoriety of the Tyburn tree or the Dickensian ribaldry under Newgate’s gallows or the legend of Jack Ketch.

Suffice to say that, wherever one lays the reasons, London’s gravitational force drags the eyeballs.

For this week’s series, it’s time to do justice to the everyday criminals who plied their trades outside the Great Wen. Specifically, we’ll be off to the Welsh frontier to meet some Shropshire malefactors whose long-ago crimes waft the moldy bouquet of that West Midlands county’s distinctive cheese.


(cc) image from Ulterior Epicure.

The sequence of March execution dates upon which this post series hangs (ahem) is more than coincidence, for the pattern of executions in Shropshire — as is generally true outside of London — tracks sittings of the intermittent assizes.

This juridical innovation predated the Magna Carta and somehow persisted until disco: traveling judges commissioned by the state to hold courts of oyer and terminer in six different regional circuits. Shropshire was part of the Oxford circuit with Berkshire, Oxfordshire, Worcestershire, Staffordshire, Herfordshire, Monmouthshire, and Gloucestershire; typically, Shropshire’s assizes were held in its centrally located county town, Shrewsbury, twice per year — once during Lent, and again in the summer. At these assizes the mobile barristers would plop down, straighten their wigs, and in the course of a few weeks try all the pending felony cases that had stacked up since their last visit. Then they would pick up and move to the next county in the circuit.

When there were many capital cases in the queue, assizes could turn downright bloody — but in more normal times, their product was predictability. Thanks to the assize schedule, 18th and 19th century Shropshire hangings almost all take place in either March-April, or July-August. Head over to capitalpunishmentuk.org and browse their logs of historical executions: see what I mean?

With due appreciation to the court’s metronomic regularity, the next few days will be dedicated to a selection of Salopean March noosings … common crimes, to be sure, and maybe a bit out of the way — but for those who touched them every bit as rich with malice and majesty and madness as ever a London footpad could design.

* Keeping sheep by moonlight: a euphemism for hanging in chains.

** This fate befalls the titular tortured scientist in Frankenstein: he wastes three months in prison on suspicion of murdering his friend awaiting “the season of the assizes”, at which point “I was obliged to travel nearly a hundred miles to the county-town, where the court was held.”

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1729: James Cluff, on appeal

Add comment July 25th, 2015 Headsman

From the Newgate Calendar:

This unhappy young man was born in Clare-market, and lived as a waiter at several public-houses, in all of which he maintained an extraordinary character for diligence, obligingness, and integrity.

Mr. Payne, master of the Green Lattice, in Holborn, hired Cluff [or Clough -ed.] as a servant, and during his residence there, he fell in love with Mary Green, his fellow-servant; but she being courted by another man, constantly rejected his addresses, which frequently agitated his mind in the most violent degree.

Green’s other lover coming to see her, sat in the same box with her, and was received by her in an affectionate manner; but this did not seem to be much regarded by Cluff, who was then engaged in attending the customers: but when the lover was gone, Mr. Payne, perceiving that something had discomposed Cluff’s mind, asked him the reason of it; but could not prevail on him to tell the cause.

While Mr. Payne and his wife were at dinner in the parlour, and the girl was eating her dinner in one of the boxes, Mrs. Payne heard a noise, as if two persons were struggling, and going into the tap-room, Cluff said, “Come hither, madam.” On this she advanced, and saw the prisoner holding the deceased by the shoulders, who was sitting on the floor, and speechless, while the blood streamed from her in large quantities.

Mrs. Payne called out, “What have you been doing, James?” He said, “Nothing.” He was asked if he had seen her hurt herself? He said, No; but that he had seen her bring a knife from the cellar where she had been to draw some beer for her dinner. Mr. Payne now entered the tap-room, and then went into then cellar to discover if there was any blood there; but finding none, he accused Cluff on suspicion of having committed the murder; and instantly sent for a surgeon. When the surgeon arrived, he found that a knife had been stabbed into the upper part of the thigh, and entered the body of the girl, in such a manner that she could not survive the stroke more than a minute. [i.e., it gashed her femoral artery -ed.]

A bloody knife was found in the room, and Cluff was committed to Newgate for the murder. On his trial, the surgeon deposed that the knife fitted the wound that had been made, and that he believed the woman had not killed herself: but the jury acquitted the prisoner, from what they deemed insufficiency of evidence.

A discharge of the accused party would now have followed of course; but William Green, the brother and heir of the deceased, immediately lodged an appeal in consequence of which Cluff was brought to trial at the next sessions but one, when his case was argued with the utmost ingenuity by the counsel for and against him, but this second jury found him guilty, and he was sentenced to die.

Holy double jeopardy! Though rarely used, it was indeed formerly an option for a victim or a victim’s heir to lodge a private appeal against the purported malefactor, even one who had already been acquitted — indeed, even against one who had been convicted and then pardoned.

The distinction between a “public” and a “private” prosecution was usually more theoretical than real, since — at least until Sir John Fielding began organizing professional police in the late 18th century — even normal Crown trials often depended mostly on the exertions of the victim or friends to bring a man to book with sufficient evidence to punish him.* But in a close case, like Cluff’s, the rarely-used private appeal option could occasionally offer what amounted to a second bite at the apple.** (See Whores and Highwaymen: Crime and Justice in the Eighteenth-century Metropolis)

Perhaps tracing to the ancient weregild system of atoning crimes via direct redress by offenders to their victims, private prosecutions were completely immune from interference by a sovereign pardon. (However, they could be dropped any time the prosecuting party wished — which also made them leverage for extracting cash settlements.)

Back to the Newgate Calendar:

“I earnestly press’d upon him to glorify God by a plain Confession of his Crime, and urg’d to him the most material Circumstances, in Consideration whereof scarce any Body doubts but he committed the Fact. He could not pretend that his Master, or Mistress, who gave him the Character of a good Servant, had any Prejudice, or Ill-will to him, upon which Account they might be easy, whether he lived or died. He neither reflected on them, nor none of the Witnesses, as if they had any View in Prosecuting him, but that Justice might be executed. I urg’d him with the Surgeon’s Opinion, that it was improbable, if not impossible, for the Maid to give herself such a Wound; that she had no Knife in the Cellar; that in the first Trial, three Persons had sworn that he was Rude and Barbarous to the Deceased upon many Occasions, and upon that Account she made grievous Complaints to her Mother, and others … he continued Peremptory in his Denial. At first, indeed, he seem’d to be in Confusion, at the many pressing Instances which were made to extort a Confession from him; but recollecting himself, he denied that he gave the mortal Wound, and said, that he knew nothing at all how she came by her Death … Many of his Friends and Acquaintances came daily to visit him, while he was under Sentence, and I wish they did not divert him too much from his Duty, and that some of them did not under-hand, buoy him up with false Hopes. He hop’d to be sav’d only by the Mercy of God, through the Merits of Jesus Christ, and that he forgave all the World any Injuries done him, as he expected Forgiveness from Almighty God.”

James Guthrie, the Ordinary of Newgate

After conviction, his behaviour was the most devout and resigned that could be imagined; he exercised himself in every act of devotion, but solemnly declared his perfect innocence with respect to the murder. He was visited by his friends, who earnestly entreated him to make a sincere confession; especially as in his case it was not in the power of the king himself to grant him a pardon. In answer hereto, he freely confessed all his other crimes; but, saying he would not rush into eternity with a lie in his month, again steadily denied the perpetration of the crime of which he had been convicted. The clergyman who attended him urged him to the confession of his guilt, and even refused to administer the sacrament to him on the morning of his execution, on any other terms than those of acknowledging his crime, but nothing could shake his resolution; he still steadily persisted in his innocence.

On his way to the place of execution, he desired to stop at the door of his late master, which being granted, he called for a pint of wine, and having drank a glass of it, he addressed Mr. Payne in the following terms:

“Sir, you are not insensible that I am going to suffer an ignominious death, for a crime of which I declare I am not guilty, as I am to appear before my great Judge in a few moments to answer for all my past sins. I hope you and my good mistress will pray for my poor soul. God bless you, and all your family.”

At the place of execution he behaved in the most composed, devout, and resigned manner; and seemed to possess in the consciousness of innocence. There was a great concourse of spectators to witness his fatal end; to whom he spoke in the following manner: “Good people, I am going to die for a fact I never committed, I wish all mankind well; and as I have prayed for my prosecutors, I hope my sins will be forgiven through the merits of my ever blessed redeemer. I beg you to pray for my departing soul; and as to the fact now die for, I wish I was as free from, all other sins.”

He was hanged at Tyburn on the, 25th of July, 1729, exhibiting no signs of fear to his last moment.

The case of this man is very extraordinary. The evidence against him was at best but circumstantial; and this not supported with such strong corroborative proofs as have occasioned conviction in many other instances. No person was witness to his commission of the murder; nor was there any absolute proof that he did commit it; and from the steady perseverance with which he denied it, under the most awful circumstances, and at the very concluding scene of his life, charity would. tempt one to believe that he was innocent. Ought not this case to afford a lesson of caution to juries how they convict on circumstantial evidence? Is it not better that the guilty should escape, than the innocent be punished? All the decrees of mortals are liable to error; but the time will come when all mists shall be cleared from our sight; and we shall witness to the wisdom of those laws of Providence, which are now inscrutable to mortal eyes. Then shall we see that what appeared inexplicable to us was divinely right; and learn to admire that wisdom which, at present, so much exceeds our finite comprehension. In the mean time, we ought to adore that goodness we cannot comprehend, and rest satisfied with those dispensations, which are eternally and immutably just.

After Cluff’s hanging, his friends published a paper delivered them by the dead man “wherein [Cluff] makes a solemn Declaration that he was innocent of the Murder, and that several material Circumstances given in Evidence against him (which he particularly mentions) were untrue.” (London Journal, Aug. 2, 1729)

* Most notoriously, Jonathan Wild profiteered wildly from this system of privatized law enforcement by extracting a cut both from thieves whom he could threaten to shop for a reward, and from victims whose effects he could recover for a percentage.

** Though such proceedings would normally be handled, as Cluff’s was, by a jury trial, it was for private prosecutions that trial by combat still remained a possibility; one wonders if the accused servant considered taking his chances in the lists. This archaic legal artifact would not be abolished for ninety more years yet — after an 1818 case, Ashford v. Thornton, in which the burly accused in a private appeal successfully sued for the right to fight his wispy accuser in arms rather than in court. The magistrate gave an embarrassed ruling in the brawler’s favor (“however obnoxious I am myself to the trial by battle, it is the mode of trial which we, in our judicial character, are bound to award. We are delivering the law as it is, and not as we wish it to be”), leading the appellant to wisely back out of the case … and leading Parliament to ban private appeals and trial by combat in 1819.

When such an abolition was mooted as a means of soothing the American colonies in the early 1770s, however, conservative Lords decried the innovation as tending to “a system of ministerial despotism” that would remove a failsafe for crime victims — although Edmund Burke did allow that the ugly remnant of judicial combat “was superstitious and barbarous to the last degree.”

Have there been attempts even in 21st century Anglosphere courts to assert the right to trial by combat? Reader, there have.

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1923: Florence Lassandro, unwilling feminist

Add comment May 2nd, 2014 Headsman

On this date in 1923, the only woman ever executed in Alberta’s history was hanged at Fort Saskatchewan.

Alberta had introduced alcohol prohibition in 1916. Florence Lassandro and her husband Carlo, Italian immigrants, were in the profitable contraband business that resulted, employed by the “Emperor Pic” — a rum-running godfather named Emilio Picariello.

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 both she and 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 to 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.

* This is by no means a latter-day insight. Olympe de Gouges‘s French Revolution-era Declaration of the Rights of Woman and the Female Citizen turned the equation around and argued, “Woman has the right to mount the scaffold; she must equally have the right to mount the rostrum.”

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.

On this day..

Entry Filed under: 20th Century,Canada,Capital Punishment,Common Criminals,Crime,Death Penalty,Drugs,Execution,Hanged,History,Milestones,Murder,Women

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