Category Archives: Notable Jurisprudence

1811: Arthur William Hodge, brutal slaveowner

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West Indies planter Arthur William Hodge hanged on this date in 1811 — a distinctive punishment, for the crime imputed was the murder of his own property, a slave named Prosper.

The Oxford-educated gentleman ruled an estate upon Tortola called Bellevue, aptly called* for Hodge gives every symptom of laboring under some sort of madness, even beyond that madness which might be inherent to a slaveholding society. Famous among other planters for his cruelty long before he came to his own grief, Hodge had allegedly reduced through sheer barbarity his own farm’s slave roster from 140 in 1803 to 35 by the time of his death. (This allegation seems to be contradicted by a post-execution advertisement for the sale of his estate enumerating 160 slaves.)

Documents published in 1811 as a Report on the Trial of Arthur Hodge, Esquire — available here and here — are thick with blood-curdling reports of Hodge’s “repeated and excessive acts of cruelty towards his slaves,” e.g.

That a slave, called “Tom Boiler,” between three and four years ago [i.e., circa 1807-1808 -ed.], was by order of the said Hodge, laid down and cart-whipped without intermission for at least an hour; that the said Arthur Hodge stood by and saw it done … that when the said negro slave “Tom Boiler,” after the infliction of said punishment attempted to rise, he could not stand, but was taken up and carried to the sick-house, from whence he never came out, but died in about a week …

That this deponent hath known the said Hodge to order, at different times, kettles of boiling water, prepared for the purpose of pouring said water down the throats of his negroes, who had offended him.

That Margaret, the cook, and Else, a washer, were served so; that said Hodge said they were going to poison Mrs. Hodge and the children, and he would put an end to them — that this deponent did not see the boiling water poured down their throats, because she had not the heart to be present; but heard the screams of Margaret, and saw both Margaret and Else running afterwards with scalded mouths, &c. …

That this deponent in passing the sick-house saw a child, about ten years of age, named Sampson, with the skin all off … that this deponent made enquiry concerning said child, and learnt by general report on the estate, from the negroes, that said child had been by order of said Hodge, dipped into a copper of boiling liquor.

-Deposition of a free black woman named Perreen Georges who was intermittently employed at Bellevue

Another negro slave, about nineteen years of age, was by order of said Hodge very severely cart-whipped and put in heavy irons, crook puddings, &c. and allowed little or nothing to eat. That he was burnt in the mouth with an hot iron, and that he, this deponent, saw him in consequence thereof, with his mouth all raw, and that he shortly after died …

That a free man, named Peter, was hired by said Hodge … to work as a cooper, on said Hodge’s estate. And that he, this deponent, has seen said Hodge in his presence, cart-whipping said Peter repeatedly, at short quarters,** and every other way, and put chains upon him, and had him worked upon his estate with the field negroes; that Peter died as this deponent believes, in consequence of the ill treatment of said Hodge …

That Bella, a small mulatto child, reputed to be the natural child of said Hodge, by his female slave Peggy, (then about eight years of age, as this deponent believes) was repeatedly cart-whipped by order of said Hodge; and this deponent further saith, he hath more than once seen the said Hodge strike said child with a stick, upon her head, and break her head; and hath repeatedly seen him kick her so violently in the lower part of her belly, as to send her several feet on the ground, from whence, he, this deponent, thought she never again would rise.

-Deposition of Stephen M’Keough, a former overseer on Hodges’s Bellevue estate

It’s a matter of speculation just why it was that Hodge’s excesses were judged by his peers sufficiently outrageous to merit what appears to be the first and only execution doled out in the British empire to a slaveholder for mistreating his chattel. Was it fear in the wake of the Haitian Revolution that his behavior invited a jacquerie on this sugar colony where the slave population outnumbered the white landowners 7:1? A stirring of the advancing abolitionist spirit that had barred the slave trade in 1807? Notably, this prosecution in 1811 for a three-year-old crime took place only with the advent of a new anti-slavery governor.

That crime, however dated when finally brought to bar, was every bit as dreadful as the sampling above from Perreen Georges and Stephen M’Keough — and Virgin Island elites gave short shrift to the planter’s defense “that a Negro, being property, ‘it was no greater offense in law for his owner to kill him, than it would be to kill his dog.'” “My God! Are we patiently to hear such a declaration?” the Crown prosecutor answered in horror. “If we one instant even tacitly acquiesced we could expect nothing short of the vengeance of heaven to overtake us and the judgments of an offended Deity, with plague, pestilence and famine to be our merited punishments.”

Prosper caught Hodge’s fury on account of losing a mango and when he was unable to produce payment for the fruit he was flogged 100 times on consecutive days, until he was too weak even to cry out. Carried to a sick-house and abandoned there without rations, he was “found there dead, and in a state of putrefaction, some days afterwards; that crawlers were found in his wounds, and not a piece of black flesh was to be seen on the hinder part of his body where he had been flogged.” With the colony in a state of outrage at these charges — “I am sensible that the country thirsts for my blood,” Hodge said in his unsuccessful closing statement to his jurors — the court defied all precedent to condemn him. In the few days before the sentence was executed, Tortola was heavily locked down to preempt possible disturbances around the public hanging, which went off without incident.

However anomalous the execution of a slaveowner, Hodge’s tyranny would be invoked again and again in a project to reform judicial administration of the West Indies that stretched into the 1830s. The concern, as Lauren Benton and Lisa Ford describe in Rage for Order, was that these reservoirs of local and private power, barely checked in a distant colony where the justices deciding cases were hopelessly compromised by their membership in the same social circles and economic engines as their fellows, corrupted the law, bringing Britain herself into disrepute. “The flywheel of this project,” Benton and Ford note, “was the subordination of masters to imperial authority, not the championing of the rights of slaves.”

* The New York asylum by which the innocent name Bellevue attains its association with psychiatric disorders did not open until 1879.

** M’Keough’s testimony digresses to define close or short quarters as Hodge’s own term, meaning “the most cruel and severe mode of cart-whipping, as the whip is shortened and goes all round the body, cutting every part, particularly the stomach and belly, making no noise, which he believes to have been an inducement with said Hodge to practice it.” While we’re dallying with definitions, a cart-whip is described as “a certain instrument of punishment … made of wood and rope of the value of one shilling” used to flog and beat slaves.

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1940: The Sass Brothers, Weimar burglars

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On this date in 1940, the Sass Brothers — notorious scofflaw thieves from the Weimar Germany era — were extrajudicially executed by the Nazis at the Sachsenhausen concentration camp.

Pioneers of the then-novel art of blowtorching their way into bank safes, die Brüder Sass — Erich and Franz — became public celebrities after their arrest in 1929, especially when the state failed to stick the case against them and the lads remained as free men, publicly flaunting their stolen wealth.

The position of being well-known unpunished crooks became a good deal less comfortable after the 1933 rise of the Nazis, so the Sasses (wisely) moved to Denmark and (less wisely) did some crimes there, too. They copped a short Danish sentence, and after its expiration in 1938 the Danes transferred Erich and Franz Sass back the Third Reich. But even the severity of 13- and 11-year sentences for bank robbery back home, according to Nikolaus Wachsmann,

did not satisfy Heinrich Himmler, who ordered the brothers’ execution. On 27 March 1940, Erich and Franz Sass were taken from penal institutions to the Sachsenhausen concentration camp. Here, they were murdered by SS men under the command of Rudolf Hoess, who recalled the execution after the war: ‘They [the brothers] refused resolutely to stand against the post, and I had to let them be tied up. They resisted with all their strength. I was extremely relieved when I was able to give the order to shoot.’ Their murder was promptly reported in the Nazi press. This case demonstrates clearly the difference between punishment in the Weimar and the Nazi period. In the Weimar Republic, the two brothers had walked free because there was not sufficient evidence to convict them. In Nazi Germany, they were murdered, irrespective of legal regulations.

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1739: Two French youths who murdered Choctaws

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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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1788: Levi and Abraham Doan, attainted Tories

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

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

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

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

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

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

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

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

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

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

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2016: Mir Quasem Ali

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

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

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

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

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

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

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

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1584: Samuel Zborowski, dangerous precedent

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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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1673: Kaelkompte and Keketamape, Albany milestones

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Indictment read to Keketamape and Kaelkompte

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

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

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

Sentence

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

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

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

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

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1942: Six German saboteurs

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

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

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

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

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

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

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

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

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

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

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

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

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

A few books about Operation Pastorius and Ex parte Quirin

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

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

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

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

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

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

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

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1821: Tommy Jemmy executes Kauquatau

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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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1946: Masaharu Homma, for the Bataan Death March

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

-Verse written by Masaharu Homma awaiting execution (Source)

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

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

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

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

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

A few books about the Bataah Death March

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

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

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

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

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

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

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

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

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

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

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

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

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