CHAPTERVIITHE SENTENCE OF DEATHThe more attention one gives to the punishment of death, the more he will be inclined to adopt the opinion of Beccaria—that it might be disused.Jeremy Bentham: “Theory of Legislation.”I have long gone about with a conviction that Sir Henry Wotton was right when he said that “hanging was the worst use man could be put to.” Not that I think he ever thrashed out the pros and cons of the matter in his mind, but being, as Dr. Ward says, a man of noble purposes and high thoughts, whose qualities united into “the amalgam of a true English gentleman,” he knew instinctively that the thing was repellent to his nature, and therefore it followed that it was economically unsound and morally wrong. Being a courtier, he pretended that the sentiment was that of the Duke of Buckingham, and being a man of humour he invested his Grace’s thought in an epigram. And for my part, though the judgment is some three hundred years old it is the last word on the subject. Dr. Johnson, who, whatever greater qualities he possessed, was not a gentleman—or to be more accurate, perhaps, was on occasion “no gentleman”—was wont to expresshimself wittily on the subject of hanging, for, as he said, “Depend upon it, Sir, when a man knows he is to be hanged in a fortnight it concentrates his mind wonderfully.” In like manner, in the true conservative spirit, he inveighed against the abolition of the good old days of Tyburn. “The age is running mad after innovation; all the business of the world is to be done in a new way; Tyburn itself is not safe from the fury of innovation. No, Sir, (said he eagerly,) it isnotan improvement: they object that the old method drew together a number of spectators. Sir, executions are intended to draw spectators. If they do not draw spectators they don’t answer their purpose. The old method was most satisfactory to all parties; the publick was gratified by a procession; the criminal was supported by it. Why is all this to be swept away?”Of course the old fellow was only pulling young Boswell’s leg. These were not his real opinions at all. Thanks to Dr. Birkbeck Hill, one can always study the varying philosophy of Dr. Johnson with his pen in his hand, and Dr. Johnson with his tongue in his cheek.Johnson, the man of letters, “the strong and noble man” in an essay in theRambler, gives us his real, earnest, sincere thoughts on the sentence of death. “It may be observed that all but murderers have, at their last hour, the common sensations of mankind pleading in their favour. They who would rejoice at the correction of a thief are shocked at the thought of destroying him. His crime shrinks to nothingcompared with his misery, and severity defeats itself by exciting pity.”In that last phrase it seems to me that the great man puts his finger upon the real objections to the death sentence from the public point of view. The pity that should be bestowed upon the victim is poured out in muddy sentimentalism at the foot of the scaffold. The sentence of death, “of dreadful things the most dreadful,” surrounds its victim with a halo in the morbid, popular mind that blacks out the sense of the crime and cruelty for which the murderer is to be punished.It is curious how little interest is taken in the subject of the death sentence to-day. On many a question of sociology the best that has yet been said has been said many generations ago. When Cesare Bonesana Marchese di Beccaria published his “Dei Delitti e delle Pene” in 1764 the world was thirsting to read what was to be said scientifically about crime and punishment, and the book actually caused the abolition of many death sentences in several European countries. For a book to cause any reform whatever sounds to-day like a miracle.And, indeed, it almost seems as though since the eighteenth century the pendulum has swung back again towards the Old Testament view of things. In this matter of capital punishment the modern authorities are more disciples of Moses than of the Apostles. They cry out, “Eye for eye, burning for burning, wound for wound, stripe forstripe;” yet the student of Asiatic folk-lore might well remember that Cain was not sentenced to death, but, on the contrary, was purposely protected from execution.That the death sentence is a deterrent is commonly said, yet the evidence seems to me unconvincing. The fear of death is a weakness; but, in fact, death is not a subject widely thought of. A murderer no more contemplates death on the scaffold than he thinks of any other form of death. As to the disgrace of such an end, that is more than compensated for by the opportunity of bravery and display so dear to criminal conceit. No sooner is a man condemned to death than the whole attitude of the official mind changes towards him. He is treated with exceptional humanity. His gaoler becomes full of charity towards him. The clergyman assures him of divine forgiveness. He dies in the odour of sanctity, with pious sentiments upon his lips. Time is not perhaps necessary to repentance, but surely as a test of repentance, time is of the essence.That there is a real human sentiment against hanging comes out, I think, in the odium and horror with which the actual hangman is regarded. Mr. Marwood, of Horncastle—from whom as a boy I used to buy shoe laces, which were regarded with religious awe by my class mates—felt this very deeply. He was an amiable, kindly man, as I remember. Indeed, why there should be any special prejudice against a hangman if his office is so necessary and worthy, it is hard to understand. The race is a tender-heartedone, if records may be believed. Mr. James Berry, to whom Mr. Marwood handed over his rope and pinions, tells us in that naïve and excellent autobiography of his “Experiences of an Executioner,” that before his first execution, when his dinner arrived consisting of “rice pudding, black currants, chicken, vegetables, potatoes, bread and the usual teetotal beverages, I tried to make the best of it, but all that I could do was to look at it, as my appetite was gone.” Is not that even more convincing than all the philosophy of Beccaria? The prisoner eats a good breakfast, the hangman starves, the prisoner in the dock is calm and reasonable, the judge breaks down and weeps. What mean these portents?Some day it will dawn on rulers that it is not a wise example to the mind of murderous tendency to deliberately do the very thing which the State professes to regard with feelings of grief and indignation. When a low-class ruffian runs amuck, shouting “I’ll swing for you!” and murders his victim, he is proving the corollary of the Mosaic proposition. If the law is to be a life for a life, it is fair for him to take a life when he is ready to give his own in exchange. It is rough, brutal logic, but not wholly fallacious.And what will bring governments to a really grave consideration of the subject is the increasing difficulty in obtaining a conviction for murder, and the still greater difficulty in carrying out the sentence afterwards. In the Habron case the sentimental public was right and officialdom wrong, and theformer saved a life. Since then the sentimentalists back their opinion against officialdom on every sentence that is pronounced. Scarcely any murderer outrages the public mind so greatly but petitions are widely signed by the hysterical against the fulfilment of the law. True we have abolished Tyburn and the bellman of St. Sepulchre’s, and the apples and ginger-bread and the fighting and bawling and gin drinking. No longer does Lord Tom Noddy invite his friends to supper at the Magpie and Stump “to see a man swing at the end of a string” in the morning sunrise. But have we not something of the same degradation in the highly spiced, detailed accounts of every moment of a murderer’s life from the day of the crime, through the excitement of the chase, up to the dramatic capture, and then along the close verbatim of the evidence until we reach the granddénouementof the sentence of death. Some there are still faithful to eighteenth-century tradition, huddling in the cold streets round the gaol gates to watch the gaoler put up a notice of the end, for the old black flag dear to this little band of stalwarts has been hauled down, alas! for the last time. Of all the blessings of the Education Acts none is taken greater advantage of, I should say, than the privilege of reading the diligent and accurate reports of murder trials in the Press of to-day. Personally, I prefer the ballads and broadsides and last dying speeches and confessions of the older race of criminals, but some of the picturesque articles of the imaginative—or, as he prefers to be called, descriptive—reporter of the moresaffron-coloured Press have the true eighteenth-century brush-mark, and I confess that they give me a momentary second-hand thrill of horror quite acceptable to my coarser nature. I do not wish to do these excellent writers any injury, but I am steadily hardening in the opinion that they are the only persons in the community who derive any benefit whatever from the death sentence, and we must really run the risk of injuring their livelihood.Personally, I never sat through murder trials unless I had a business interest in them, nor to me are they—merely as trials—of greater interest than many other trials. But the overhanging sentence of death gives them a colour that stamps them very vividly in the memory.What a curious drab, unentertaining drama was that of Mrs. Britland, but for the sentence of death at the fall of the curtain.Yet perhaps if Dumas had had the handling of this chapter he would have spun you a wonderful and mysterious story out of the web of it. Though I doubt after all if he would have deigned to write about such a humble practitioner in the art of poisoning. He must have his most noble Marquise de Brinvilliers and her elegant accomplice, Sainte Croix, before he can transpose squalid crime into profitable romance.Mary Ann Britland is a figure in Manchester history as being the only woman ever hanged for murder in Strangeways Gaol. For myself, I think that nothing could have saved her from the ultimatepenalty of the law, though I recognise that there are distinctions even among evildoers, and that there was sense in the “bull” of the Irish barrister when he was asked his opinion about the Maybrick case, and said: “After all, you can’t expect an English Home Secretary to hang a lady he might meet out at dinner afterwards.” The trial was interesting to me as being the first murder trial I had ever sat through, and the closing scenes of it, horrible as they were, impressed me very strongly with the inadvisability of a Crown Court sitting late into the night on the trial of prisoners, and went far to convince me that capital punishment enshrined the wickedest criminal in a veil of mystery behind which the crime itself and its victims were too often lost sight of.Mary Ann Britland was a factory operative about thirty-nine years old, living with her husband and daughter in Turner Lane, Ashton. On March 9, 1896, her daughter died very suddenly. On May 3 her husband died equally suddenly. She then went to live with some neighbours named Mr. and Mrs. Dixon. She and Mr. Dixon had been on very friendly terms, and the evidence showed that Mary Dixon, her friend’s wife, invited her to her house out of compassion. On May 14 Mary Dixon died very suddenly. Upon this the Ashton police began to bestir themselves. A post-mortem was held on Mary Dixon, revealing the fact that she died of strychnine poisoning. Mrs. Britland was arrested. The bodies of her daughter and husband were exhumed, and the evidence showed that they, too,had died of strychnine poisoning. Thomas Dixon was now arrested, and an inquiry begun before the magistrates. Falkner Blair defended the woman, and Byrne appeared for Dixon. There was little or no evidence against the latter, and an eloquent speech by Byrne secured his discharge before the magistrates. Although no doubt he was innocent, it was to this piece of advocacy he probably owed his life, as unless a judge on the trial had withdrawn his case from the jury on the ground that there was no evidence against him it is almost certain he would have been convicted, so hopeless is the position of a man whose only apology is that the woman tempted him and he fell, when he comes before a tribunal of twelve fellow-sinners. Dixon’s only chance would have been a jury of women.The trial came before Mr. Justice Cave in July of the same year. Addison, Q.C., and Woodard prosecuted, and Blair and Byrne defended. I had made a précis of the case for Blair at his request, and I took a note for them during the trial. The case lasted two days, and at the end of the second day Blair addressed the jury. The evidence was overwhelming. The three deceased persons had been poisoned by strychnine. Mrs. Britland had purchased “mouse powder” in sufficient quantities to kill them all, and there was no evidence of any mice on whom it could have been legitimately used. The case of the poisoning of Mrs. Dixon was the one actually tried, but the deaths of the otherswere proved to show “system” and rebut the defence of accident. Even if there had not been sufficient evidence to secure a conviction, Mrs. Britland had had many indiscreet conversations about “mouse powder” and poisoning, and had been anxious to discover whether such poisoning could be traced after death. Blair’s task seemed hopeless enough, but he made an eloquent and cunning address to the jury.It was one of those cases where anything like reasoned argument would have been useless. The only chance for the advocate who loved his art as Blair did was to endeavour to instil doubt into the receptive minds of the jury, that by good hap the prisoner should gain the benefit of it. This he did with great skill, touching lightly upon the possibilities of accident or of poisoning by some other hands, or even of self-administration. And in those days when the guilty one was safe in the dock and could give no evidence, there was greater scope for the art of advocacy—for is it not an art, as Master Izaak tells us, to “deceive a trout with an artificial fly.” And Blair was a great artist at the raising of haunting doubts, which followed the jury when they retired to their inner room, so that he almost seemed to be the thirteenth man on the jury, he and his doubts remained so present to their anxious minds. And I remember no advocate who could handle a hopeless case more cleverly within the honest rules of the game, unless it be Sir Edward Clarke himself. The result was extraordinary.Mr. Justice Cave summed up in a businesslike and sensible style, expecting a conviction in a few minutes, and at twenty minutes to six the jury retired. The judge waited some little time, but, as they did not return, he went across to his lodgings, then in the same building, and we went upstairs to the Bar mess. At a quarter to eight they returned. The wretched prisoner was put up in the dock. The foreman explained that they were not agreed. They handed a paper to the judge, who told them to retire and consider the matter further.Blair left the building and Byrne remained to see what happened. It was well after 10 o’clock at night before they returned into court. I suppose the clerk of assize knew that they had not agreed upon their verdict, and for humane reasons did not send for the prisoner. Then began a conversation between the judge and the foreman. The judge told the jury that he must direct that they be taken to the hotel for the night, and then said, “Is there any legal difficulty in which I can assist you?”“Only the paper I gave you, my lord.”“Yes, but is there any legal difficulty in your way?”To which the foreman replied, “Nothing, only that you have there.”Upon which the judge again told them he must direct them to be taken to the hotel.There was a pause. No one had any doubt what the trouble of the jury was. They wanted in theirwrong-headed way to acquit Mrs. Britland because they could not convict Mr. Dixon.Cave thought for a moment, and then turning to the jury made a short summing-up, tearing up any shreds of evidence there might have been against Dixon, and putting the case against Mrs. Britland in true and convincing colours, winding up by saying, “And now, gentlemen, you had better go and consider it, and to-morrow morning I will hear what you have to say.”The jury held a brief consultation and begged a quarter of an hour in which to escape the threatened hotel. The judge granted this, and again the jury retired.I am far from saying that modern judges permit wretches to hang that jurymen may dine, or that they are actuated by any but business motives in sitting late hours, but I have my doubts whether justice is as well administered in the late hours of the night as in more normal business hours, and it is at least noticeable how this takes place more in the provinces, where the judges live in lodgings, than in London, where their lordships are in reach of their clubs and their homes. I do not think the jury in the Britland case would have agreed but for the threat of the hotel made to them at 10 o’clock at night, but it was certainly in mercy to the wretched woman in the dock that the affair was ended, for there were two other indictments for murder hanging over her head.I said the woman in the dock, but the late hourswere, I fear, responsible for a very curious blunder in procedure.Whilst Mr. Justice Cave was giving his last instructions to the jury, of which Byrne and I took notes, I added to my note, “During this direction of the judge the prisoner was absent.” I called Byrne’s attention to this fact, and he decided to make a note of it and say nothing.Blair afterwards considered that if he moved for a writ of error the fact of the prisoner’s absence might be held to invalidate the verdict, so jealously is the right of a prisoner to be present during his trial guarded by the English law.Nothing was done in the matter because of the two further indictments. Still, had the trial been concluded in normal working hours, such a blunder would not have been made by judge or clerk of assize.And now the jury return and answer to their names. The gaslights flare up. Doors swing backwards and forwards as counsel and officials come hurrying into court. From behind the javelin men crowds press eagerly forward at the back of the court, and tired faces peer through the darkness of the gallery, whence you hear murmurs and sighs of relief that at last the moment waited for is at hand. The wretched woman, tottering to the front of the dock, is the colour of the parchment upon which her crime is indicted. She is asked why sentence should not be pronounced. She clings to the rails and begins slowly and firmly, “I amquite innocent. I am not guilty at all,” and then breaks into piteous sobs and tears, and the female warder holds her in position as if she were being photographed. The judge’s clerk, who is stifling a yawn, has placed the black cap on his master’s wig. The judge in his nasal, solemn tones gets to the sentence in as few personal words as may be. The woman shrieks out “I never administered anything at all to Mary Dixon! Nothing whatever!” And when the judge reaches in resolute, mournful syllables the formal death sentence, the human voice that utters it seems to toll like a harsh metal bell hopelessly and inevitably beating out the last official message of the law: “And that is that you be taken from here to the prison from whence you came, that from thence you be taken to a place of execution, and that there you be hanged by the neck until you be dead, and that your body be buried within the precincts of the prison——” But the final prayer that the Lord may have mercy on her soul is lost in the wild, terror-stricken cries of the woman for mercy as they unfasten her fingers from the rails and carry her down the stairs towards the gaol, and her shrieks and sobs come echoing out of the stone passages below into the darkening court from which her fellow-creatures are slinking away in horror.The only other murder case in which I was engaged, and in which the sentence of death was passed, was in 1889—a case in which I prosecuted as junior to Falkner Blair—and the facts remain vividly in my memory.Reg..vDukes, or the Bury murder, as it was called, attracted widespread interest. Dukes was manager of one of a series of furniture shops belonging to the Gordon Furnishing Company, the central shop of which was in Strangeways, Manchester. The business was owned by an old man named Gordon, who had two sons, Meyer and George. The family were Jews. George Gordon visited the Bury shop every Tuesday. There seems no doubt that Dukes had been stealing the takings, and for a month before the murder he kept on sending to Manchester bogus letters and telegrams about business with the intention of keeping George Gordon away from Bury. For three or four Tuesdays he had not made his usual visit, and when he did come on the morning of Tuesday, September 24, Dukes was not there, but, as we learned afterwards, was lying hid and drinking in a neighbouring public-house. Gordon examined the books and waited for Dukes, and then returned to Manchester.There he seemed to have consulted with his father, and returned to Bury. Meanwhile, Dukes had followed George Gordon to Manchester, called at the central shop, and made a statement that he had been in Manchester on business all day, that he was returning to Bury, and would take a message from the father, which he did. At Bury he now met George Gordon. The shopboy was sent off by Dukes with some furniture to an address that proved to be an empty house. When he left with the cart about 2.30, Gordon and Dukes were alone in the shoptogether. He heard them talking as he drove away. Within a few minutes Dukes had killed Gordon with a hammer, striking him on the back of his head.I remember going with Blair and the police to the scene of the murder. It was a little mean shop in a main thoroughfare, about a hundred yards from the Bolton Street Station. It was a building of two stories and a cellar, and if the under floor of the cellar had not been cement the murder might not have been discovered for many years. For we saw the chips in the edge of the flags, where Dukes had removed one for experimental burial purposes.The first thing Dukes did to cover up his tracks was to send a telegram to the elder Gordon as from George to say he had gone to Liverpool and would not be back that night. The next day old Gordon consulted the Manchester police, and the Bury police were communicated with, but nothing was known against Dukes, and the official view laughingly communicated to the old man was that he would see his son again when his money was spent and he was tired of Liverpool. As far as we could reconstruct his story from the evidence before us, Dukes, having bought a pick and failed to dig a grave with it, wasted a whole day without any further move. Then he hit on the idea of putting the body into a wardrobe which he was going to cart over the hills to Rochdale, intending probably to throw the body out behind some stone wall on the moors to the north or dispose of it in some solitary place. For this purpose on Thursday afternoon, two days after the murder,he had hired a cart which was waiting at the door.Wednesday, September 25, was the New Year in the Jewish calendar, when it is the custom of Jewish families to gather together in the synagogue. “Let us wait until the night of Wednesday,” said George Gordon’s father, “and if George is alive he will be with us, and if he be not here, then we shall know he is dead.”On Thursday morning there was no news of George. The old man and his son Meyer went to the Manchester police, and were referred to Bury. At Bury they insisted that George was dead, and the old man expressed his belief that his body was in the shop in Central Street.The police, more to pacify the distressed father than from any belief in his fears, agreed to make a search of the house, and thus it was that as the cart stood outside waiting to load up the wardrobe which Dukes was taking away, Sergeant Ross and two constables with old Gordon and Meyer entered the shop.A thorough search was made, and the police for the first time noticed signs of recent disturbances in the cellar. Whilst the search was going on Dukes made an exit down a side entry, and was brought back by the police. Sergeant Ross began to take a deeper interest in him. Nothing more serious, however, was found, and they all stood in the little shop around the wardrobe. It looked as if the business of the police was over.“What is this wardrobe lying here for?” asked old Gordon.“It’s going out to Rochdale; the cart is waiting outside for it now,” replied Dukes.“Open it,” demanded the old man.“I cannot. A lady bought it. She packed some things in it, and locked it and took the key.”“Then burst it open. It’s mine. Burst it open.”There seemed no doubt what the old man expected to see. A police officer prized the door. It flew readily upward, disclosing its horrid, huddled contents. Meyer flew at Dukes’s throat, crying, “You have murdered my brother!” But the police pulled him off, and saved Dukes for the law.Early in December the case was heard, and we pieced together by a large number of witnesses the story of the murder. The prisoner made a statement to the effect that he had been attacked by Gordon and killed him in self-defence. It was a lame effort, and even Cottingham’s eloquence could not endow it with probability. It was a callous and brutal murder, almost excusing the brutal comment which I heard as I passed through the crowded hall where the result was being discussed.“Well, ’e won’t get any Christmas dinner, chuse ’ow.”Dukes was hanged at Strangeways Gaol on Christmas Eve.I agree that there was little pity shown for Dukes, who was a sodden, heartless creature, and a criminal of the most degraded type. But the interest in thetrial swept away any sympathy or thought for the victim and the unfortunate relatives who had been plunged into sorrow by the act of the criminal.Just as I have no doubt that the sentence of death for theft and other offences, well and reasonably and sensibly defended by the more cautious property-owning minds of the eighteenth century, was ultimately abolished in deference to the sentiments of the weaker-minded of the community and the real necessities of society that they understood better than their opponents, so I have no doubt the sentence of death will pass away from our administration of the law altogether before many years are past. I do not suggest the question is a very burning one from the point of view of criminal law, but from the point of view of education and the evolution of right action and conduct in the community, it seems to me to be of importance. I am certainly far from believing that anything I may say or write will hasten matters, nor, indeed, is there any hurry about the affair. It is only some three hundred years since that good Christian gentleman, Sir Henry Wotton, laid down the principle that the hanging of men was an uncitizen-like act. True, the principle has long been accepted by the majority, but we are a cautious and conservative race. I have long ago ceased expecting to see reforms come about in my own day. I hear the statesman calling upon me to “Wait and see!” and although I shall certainly wait as long as I can, I shall not worry if it is not my lot to see. Ihave very clear visions from my own little mountain of the promised land that my great-grandchildren and their youngsters will live in. It will be as far removed from us as we are from the days of Sir Henry Wotton, but what was good common-sense in his day will be good common-sense in theirs, as it is in ours, and ever shall be, world without end.
The more attention one gives to the punishment of death, the more he will be inclined to adopt the opinion of Beccaria—that it might be disused.
Jeremy Bentham: “Theory of Legislation.”
I have long gone about with a conviction that Sir Henry Wotton was right when he said that “hanging was the worst use man could be put to.” Not that I think he ever thrashed out the pros and cons of the matter in his mind, but being, as Dr. Ward says, a man of noble purposes and high thoughts, whose qualities united into “the amalgam of a true English gentleman,” he knew instinctively that the thing was repellent to his nature, and therefore it followed that it was economically unsound and morally wrong. Being a courtier, he pretended that the sentiment was that of the Duke of Buckingham, and being a man of humour he invested his Grace’s thought in an epigram. And for my part, though the judgment is some three hundred years old it is the last word on the subject. Dr. Johnson, who, whatever greater qualities he possessed, was not a gentleman—or to be more accurate, perhaps, was on occasion “no gentleman”—was wont to expresshimself wittily on the subject of hanging, for, as he said, “Depend upon it, Sir, when a man knows he is to be hanged in a fortnight it concentrates his mind wonderfully.” In like manner, in the true conservative spirit, he inveighed against the abolition of the good old days of Tyburn. “The age is running mad after innovation; all the business of the world is to be done in a new way; Tyburn itself is not safe from the fury of innovation. No, Sir, (said he eagerly,) it isnotan improvement: they object that the old method drew together a number of spectators. Sir, executions are intended to draw spectators. If they do not draw spectators they don’t answer their purpose. The old method was most satisfactory to all parties; the publick was gratified by a procession; the criminal was supported by it. Why is all this to be swept away?”
Of course the old fellow was only pulling young Boswell’s leg. These were not his real opinions at all. Thanks to Dr. Birkbeck Hill, one can always study the varying philosophy of Dr. Johnson with his pen in his hand, and Dr. Johnson with his tongue in his cheek.
Johnson, the man of letters, “the strong and noble man” in an essay in theRambler, gives us his real, earnest, sincere thoughts on the sentence of death. “It may be observed that all but murderers have, at their last hour, the common sensations of mankind pleading in their favour. They who would rejoice at the correction of a thief are shocked at the thought of destroying him. His crime shrinks to nothingcompared with his misery, and severity defeats itself by exciting pity.”
In that last phrase it seems to me that the great man puts his finger upon the real objections to the death sentence from the public point of view. The pity that should be bestowed upon the victim is poured out in muddy sentimentalism at the foot of the scaffold. The sentence of death, “of dreadful things the most dreadful,” surrounds its victim with a halo in the morbid, popular mind that blacks out the sense of the crime and cruelty for which the murderer is to be punished.
It is curious how little interest is taken in the subject of the death sentence to-day. On many a question of sociology the best that has yet been said has been said many generations ago. When Cesare Bonesana Marchese di Beccaria published his “Dei Delitti e delle Pene” in 1764 the world was thirsting to read what was to be said scientifically about crime and punishment, and the book actually caused the abolition of many death sentences in several European countries. For a book to cause any reform whatever sounds to-day like a miracle.
And, indeed, it almost seems as though since the eighteenth century the pendulum has swung back again towards the Old Testament view of things. In this matter of capital punishment the modern authorities are more disciples of Moses than of the Apostles. They cry out, “Eye for eye, burning for burning, wound for wound, stripe forstripe;” yet the student of Asiatic folk-lore might well remember that Cain was not sentenced to death, but, on the contrary, was purposely protected from execution.
That the death sentence is a deterrent is commonly said, yet the evidence seems to me unconvincing. The fear of death is a weakness; but, in fact, death is not a subject widely thought of. A murderer no more contemplates death on the scaffold than he thinks of any other form of death. As to the disgrace of such an end, that is more than compensated for by the opportunity of bravery and display so dear to criminal conceit. No sooner is a man condemned to death than the whole attitude of the official mind changes towards him. He is treated with exceptional humanity. His gaoler becomes full of charity towards him. The clergyman assures him of divine forgiveness. He dies in the odour of sanctity, with pious sentiments upon his lips. Time is not perhaps necessary to repentance, but surely as a test of repentance, time is of the essence.
That there is a real human sentiment against hanging comes out, I think, in the odium and horror with which the actual hangman is regarded. Mr. Marwood, of Horncastle—from whom as a boy I used to buy shoe laces, which were regarded with religious awe by my class mates—felt this very deeply. He was an amiable, kindly man, as I remember. Indeed, why there should be any special prejudice against a hangman if his office is so necessary and worthy, it is hard to understand. The race is a tender-heartedone, if records may be believed. Mr. James Berry, to whom Mr. Marwood handed over his rope and pinions, tells us in that naïve and excellent autobiography of his “Experiences of an Executioner,” that before his first execution, when his dinner arrived consisting of “rice pudding, black currants, chicken, vegetables, potatoes, bread and the usual teetotal beverages, I tried to make the best of it, but all that I could do was to look at it, as my appetite was gone.” Is not that even more convincing than all the philosophy of Beccaria? The prisoner eats a good breakfast, the hangman starves, the prisoner in the dock is calm and reasonable, the judge breaks down and weeps. What mean these portents?
Some day it will dawn on rulers that it is not a wise example to the mind of murderous tendency to deliberately do the very thing which the State professes to regard with feelings of grief and indignation. When a low-class ruffian runs amuck, shouting “I’ll swing for you!” and murders his victim, he is proving the corollary of the Mosaic proposition. If the law is to be a life for a life, it is fair for him to take a life when he is ready to give his own in exchange. It is rough, brutal logic, but not wholly fallacious.
And what will bring governments to a really grave consideration of the subject is the increasing difficulty in obtaining a conviction for murder, and the still greater difficulty in carrying out the sentence afterwards. In the Habron case the sentimental public was right and officialdom wrong, and theformer saved a life. Since then the sentimentalists back their opinion against officialdom on every sentence that is pronounced. Scarcely any murderer outrages the public mind so greatly but petitions are widely signed by the hysterical against the fulfilment of the law. True we have abolished Tyburn and the bellman of St. Sepulchre’s, and the apples and ginger-bread and the fighting and bawling and gin drinking. No longer does Lord Tom Noddy invite his friends to supper at the Magpie and Stump “to see a man swing at the end of a string” in the morning sunrise. But have we not something of the same degradation in the highly spiced, detailed accounts of every moment of a murderer’s life from the day of the crime, through the excitement of the chase, up to the dramatic capture, and then along the close verbatim of the evidence until we reach the granddénouementof the sentence of death. Some there are still faithful to eighteenth-century tradition, huddling in the cold streets round the gaol gates to watch the gaoler put up a notice of the end, for the old black flag dear to this little band of stalwarts has been hauled down, alas! for the last time. Of all the blessings of the Education Acts none is taken greater advantage of, I should say, than the privilege of reading the diligent and accurate reports of murder trials in the Press of to-day. Personally, I prefer the ballads and broadsides and last dying speeches and confessions of the older race of criminals, but some of the picturesque articles of the imaginative—or, as he prefers to be called, descriptive—reporter of the moresaffron-coloured Press have the true eighteenth-century brush-mark, and I confess that they give me a momentary second-hand thrill of horror quite acceptable to my coarser nature. I do not wish to do these excellent writers any injury, but I am steadily hardening in the opinion that they are the only persons in the community who derive any benefit whatever from the death sentence, and we must really run the risk of injuring their livelihood.
Personally, I never sat through murder trials unless I had a business interest in them, nor to me are they—merely as trials—of greater interest than many other trials. But the overhanging sentence of death gives them a colour that stamps them very vividly in the memory.
What a curious drab, unentertaining drama was that of Mrs. Britland, but for the sentence of death at the fall of the curtain.
Yet perhaps if Dumas had had the handling of this chapter he would have spun you a wonderful and mysterious story out of the web of it. Though I doubt after all if he would have deigned to write about such a humble practitioner in the art of poisoning. He must have his most noble Marquise de Brinvilliers and her elegant accomplice, Sainte Croix, before he can transpose squalid crime into profitable romance.
Mary Ann Britland is a figure in Manchester history as being the only woman ever hanged for murder in Strangeways Gaol. For myself, I think that nothing could have saved her from the ultimatepenalty of the law, though I recognise that there are distinctions even among evildoers, and that there was sense in the “bull” of the Irish barrister when he was asked his opinion about the Maybrick case, and said: “After all, you can’t expect an English Home Secretary to hang a lady he might meet out at dinner afterwards.” The trial was interesting to me as being the first murder trial I had ever sat through, and the closing scenes of it, horrible as they were, impressed me very strongly with the inadvisability of a Crown Court sitting late into the night on the trial of prisoners, and went far to convince me that capital punishment enshrined the wickedest criminal in a veil of mystery behind which the crime itself and its victims were too often lost sight of.
Mary Ann Britland was a factory operative about thirty-nine years old, living with her husband and daughter in Turner Lane, Ashton. On March 9, 1896, her daughter died very suddenly. On May 3 her husband died equally suddenly. She then went to live with some neighbours named Mr. and Mrs. Dixon. She and Mr. Dixon had been on very friendly terms, and the evidence showed that Mary Dixon, her friend’s wife, invited her to her house out of compassion. On May 14 Mary Dixon died very suddenly. Upon this the Ashton police began to bestir themselves. A post-mortem was held on Mary Dixon, revealing the fact that she died of strychnine poisoning. Mrs. Britland was arrested. The bodies of her daughter and husband were exhumed, and the evidence showed that they, too,had died of strychnine poisoning. Thomas Dixon was now arrested, and an inquiry begun before the magistrates. Falkner Blair defended the woman, and Byrne appeared for Dixon. There was little or no evidence against the latter, and an eloquent speech by Byrne secured his discharge before the magistrates. Although no doubt he was innocent, it was to this piece of advocacy he probably owed his life, as unless a judge on the trial had withdrawn his case from the jury on the ground that there was no evidence against him it is almost certain he would have been convicted, so hopeless is the position of a man whose only apology is that the woman tempted him and he fell, when he comes before a tribunal of twelve fellow-sinners. Dixon’s only chance would have been a jury of women.
The trial came before Mr. Justice Cave in July of the same year. Addison, Q.C., and Woodard prosecuted, and Blair and Byrne defended. I had made a précis of the case for Blair at his request, and I took a note for them during the trial. The case lasted two days, and at the end of the second day Blair addressed the jury. The evidence was overwhelming. The three deceased persons had been poisoned by strychnine. Mrs. Britland had purchased “mouse powder” in sufficient quantities to kill them all, and there was no evidence of any mice on whom it could have been legitimately used. The case of the poisoning of Mrs. Dixon was the one actually tried, but the deaths of the otherswere proved to show “system” and rebut the defence of accident. Even if there had not been sufficient evidence to secure a conviction, Mrs. Britland had had many indiscreet conversations about “mouse powder” and poisoning, and had been anxious to discover whether such poisoning could be traced after death. Blair’s task seemed hopeless enough, but he made an eloquent and cunning address to the jury.
It was one of those cases where anything like reasoned argument would have been useless. The only chance for the advocate who loved his art as Blair did was to endeavour to instil doubt into the receptive minds of the jury, that by good hap the prisoner should gain the benefit of it. This he did with great skill, touching lightly upon the possibilities of accident or of poisoning by some other hands, or even of self-administration. And in those days when the guilty one was safe in the dock and could give no evidence, there was greater scope for the art of advocacy—for is it not an art, as Master Izaak tells us, to “deceive a trout with an artificial fly.” And Blair was a great artist at the raising of haunting doubts, which followed the jury when they retired to their inner room, so that he almost seemed to be the thirteenth man on the jury, he and his doubts remained so present to their anxious minds. And I remember no advocate who could handle a hopeless case more cleverly within the honest rules of the game, unless it be Sir Edward Clarke himself. The result was extraordinary.Mr. Justice Cave summed up in a businesslike and sensible style, expecting a conviction in a few minutes, and at twenty minutes to six the jury retired. The judge waited some little time, but, as they did not return, he went across to his lodgings, then in the same building, and we went upstairs to the Bar mess. At a quarter to eight they returned. The wretched prisoner was put up in the dock. The foreman explained that they were not agreed. They handed a paper to the judge, who told them to retire and consider the matter further.
Blair left the building and Byrne remained to see what happened. It was well after 10 o’clock at night before they returned into court. I suppose the clerk of assize knew that they had not agreed upon their verdict, and for humane reasons did not send for the prisoner. Then began a conversation between the judge and the foreman. The judge told the jury that he must direct that they be taken to the hotel for the night, and then said, “Is there any legal difficulty in which I can assist you?”
“Only the paper I gave you, my lord.”
“Yes, but is there any legal difficulty in your way?”
To which the foreman replied, “Nothing, only that you have there.”
Upon which the judge again told them he must direct them to be taken to the hotel.
There was a pause. No one had any doubt what the trouble of the jury was. They wanted in theirwrong-headed way to acquit Mrs. Britland because they could not convict Mr. Dixon.
Cave thought for a moment, and then turning to the jury made a short summing-up, tearing up any shreds of evidence there might have been against Dixon, and putting the case against Mrs. Britland in true and convincing colours, winding up by saying, “And now, gentlemen, you had better go and consider it, and to-morrow morning I will hear what you have to say.”
The jury held a brief consultation and begged a quarter of an hour in which to escape the threatened hotel. The judge granted this, and again the jury retired.
I am far from saying that modern judges permit wretches to hang that jurymen may dine, or that they are actuated by any but business motives in sitting late hours, but I have my doubts whether justice is as well administered in the late hours of the night as in more normal business hours, and it is at least noticeable how this takes place more in the provinces, where the judges live in lodgings, than in London, where their lordships are in reach of their clubs and their homes. I do not think the jury in the Britland case would have agreed but for the threat of the hotel made to them at 10 o’clock at night, but it was certainly in mercy to the wretched woman in the dock that the affair was ended, for there were two other indictments for murder hanging over her head.
I said the woman in the dock, but the late hourswere, I fear, responsible for a very curious blunder in procedure.
Whilst Mr. Justice Cave was giving his last instructions to the jury, of which Byrne and I took notes, I added to my note, “During this direction of the judge the prisoner was absent.” I called Byrne’s attention to this fact, and he decided to make a note of it and say nothing.
Blair afterwards considered that if he moved for a writ of error the fact of the prisoner’s absence might be held to invalidate the verdict, so jealously is the right of a prisoner to be present during his trial guarded by the English law.
Nothing was done in the matter because of the two further indictments. Still, had the trial been concluded in normal working hours, such a blunder would not have been made by judge or clerk of assize.
And now the jury return and answer to their names. The gaslights flare up. Doors swing backwards and forwards as counsel and officials come hurrying into court. From behind the javelin men crowds press eagerly forward at the back of the court, and tired faces peer through the darkness of the gallery, whence you hear murmurs and sighs of relief that at last the moment waited for is at hand. The wretched woman, tottering to the front of the dock, is the colour of the parchment upon which her crime is indicted. She is asked why sentence should not be pronounced. She clings to the rails and begins slowly and firmly, “I amquite innocent. I am not guilty at all,” and then breaks into piteous sobs and tears, and the female warder holds her in position as if she were being photographed. The judge’s clerk, who is stifling a yawn, has placed the black cap on his master’s wig. The judge in his nasal, solemn tones gets to the sentence in as few personal words as may be. The woman shrieks out “I never administered anything at all to Mary Dixon! Nothing whatever!” And when the judge reaches in resolute, mournful syllables the formal death sentence, the human voice that utters it seems to toll like a harsh metal bell hopelessly and inevitably beating out the last official message of the law: “And that is that you be taken from here to the prison from whence you came, that from thence you be taken to a place of execution, and that there you be hanged by the neck until you be dead, and that your body be buried within the precincts of the prison——” But the final prayer that the Lord may have mercy on her soul is lost in the wild, terror-stricken cries of the woman for mercy as they unfasten her fingers from the rails and carry her down the stairs towards the gaol, and her shrieks and sobs come echoing out of the stone passages below into the darkening court from which her fellow-creatures are slinking away in horror.
The only other murder case in which I was engaged, and in which the sentence of death was passed, was in 1889—a case in which I prosecuted as junior to Falkner Blair—and the facts remain vividly in my memory.
Reg..vDukes, or the Bury murder, as it was called, attracted widespread interest. Dukes was manager of one of a series of furniture shops belonging to the Gordon Furnishing Company, the central shop of which was in Strangeways, Manchester. The business was owned by an old man named Gordon, who had two sons, Meyer and George. The family were Jews. George Gordon visited the Bury shop every Tuesday. There seems no doubt that Dukes had been stealing the takings, and for a month before the murder he kept on sending to Manchester bogus letters and telegrams about business with the intention of keeping George Gordon away from Bury. For three or four Tuesdays he had not made his usual visit, and when he did come on the morning of Tuesday, September 24, Dukes was not there, but, as we learned afterwards, was lying hid and drinking in a neighbouring public-house. Gordon examined the books and waited for Dukes, and then returned to Manchester.
There he seemed to have consulted with his father, and returned to Bury. Meanwhile, Dukes had followed George Gordon to Manchester, called at the central shop, and made a statement that he had been in Manchester on business all day, that he was returning to Bury, and would take a message from the father, which he did. At Bury he now met George Gordon. The shopboy was sent off by Dukes with some furniture to an address that proved to be an empty house. When he left with the cart about 2.30, Gordon and Dukes were alone in the shoptogether. He heard them talking as he drove away. Within a few minutes Dukes had killed Gordon with a hammer, striking him on the back of his head.
I remember going with Blair and the police to the scene of the murder. It was a little mean shop in a main thoroughfare, about a hundred yards from the Bolton Street Station. It was a building of two stories and a cellar, and if the under floor of the cellar had not been cement the murder might not have been discovered for many years. For we saw the chips in the edge of the flags, where Dukes had removed one for experimental burial purposes.
The first thing Dukes did to cover up his tracks was to send a telegram to the elder Gordon as from George to say he had gone to Liverpool and would not be back that night. The next day old Gordon consulted the Manchester police, and the Bury police were communicated with, but nothing was known against Dukes, and the official view laughingly communicated to the old man was that he would see his son again when his money was spent and he was tired of Liverpool. As far as we could reconstruct his story from the evidence before us, Dukes, having bought a pick and failed to dig a grave with it, wasted a whole day without any further move. Then he hit on the idea of putting the body into a wardrobe which he was going to cart over the hills to Rochdale, intending probably to throw the body out behind some stone wall on the moors to the north or dispose of it in some solitary place. For this purpose on Thursday afternoon, two days after the murder,he had hired a cart which was waiting at the door.
Wednesday, September 25, was the New Year in the Jewish calendar, when it is the custom of Jewish families to gather together in the synagogue. “Let us wait until the night of Wednesday,” said George Gordon’s father, “and if George is alive he will be with us, and if he be not here, then we shall know he is dead.”
On Thursday morning there was no news of George. The old man and his son Meyer went to the Manchester police, and were referred to Bury. At Bury they insisted that George was dead, and the old man expressed his belief that his body was in the shop in Central Street.
The police, more to pacify the distressed father than from any belief in his fears, agreed to make a search of the house, and thus it was that as the cart stood outside waiting to load up the wardrobe which Dukes was taking away, Sergeant Ross and two constables with old Gordon and Meyer entered the shop.
A thorough search was made, and the police for the first time noticed signs of recent disturbances in the cellar. Whilst the search was going on Dukes made an exit down a side entry, and was brought back by the police. Sergeant Ross began to take a deeper interest in him. Nothing more serious, however, was found, and they all stood in the little shop around the wardrobe. It looked as if the business of the police was over.
“What is this wardrobe lying here for?” asked old Gordon.
“It’s going out to Rochdale; the cart is waiting outside for it now,” replied Dukes.
“Open it,” demanded the old man.
“I cannot. A lady bought it. She packed some things in it, and locked it and took the key.”
“Then burst it open. It’s mine. Burst it open.”
There seemed no doubt what the old man expected to see. A police officer prized the door. It flew readily upward, disclosing its horrid, huddled contents. Meyer flew at Dukes’s throat, crying, “You have murdered my brother!” But the police pulled him off, and saved Dukes for the law.
Early in December the case was heard, and we pieced together by a large number of witnesses the story of the murder. The prisoner made a statement to the effect that he had been attacked by Gordon and killed him in self-defence. It was a lame effort, and even Cottingham’s eloquence could not endow it with probability. It was a callous and brutal murder, almost excusing the brutal comment which I heard as I passed through the crowded hall where the result was being discussed.
“Well, ’e won’t get any Christmas dinner, chuse ’ow.”
Dukes was hanged at Strangeways Gaol on Christmas Eve.
I agree that there was little pity shown for Dukes, who was a sodden, heartless creature, and a criminal of the most degraded type. But the interest in thetrial swept away any sympathy or thought for the victim and the unfortunate relatives who had been plunged into sorrow by the act of the criminal.
Just as I have no doubt that the sentence of death for theft and other offences, well and reasonably and sensibly defended by the more cautious property-owning minds of the eighteenth century, was ultimately abolished in deference to the sentiments of the weaker-minded of the community and the real necessities of society that they understood better than their opponents, so I have no doubt the sentence of death will pass away from our administration of the law altogether before many years are past. I do not suggest the question is a very burning one from the point of view of criminal law, but from the point of view of education and the evolution of right action and conduct in the community, it seems to me to be of importance. I am certainly far from believing that anything I may say or write will hasten matters, nor, indeed, is there any hurry about the affair. It is only some three hundred years since that good Christian gentleman, Sir Henry Wotton, laid down the principle that the hanging of men was an uncitizen-like act. True, the principle has long been accepted by the majority, but we are a cautious and conservative race. I have long ago ceased expecting to see reforms come about in my own day. I hear the statesman calling upon me to “Wait and see!” and although I shall certainly wait as long as I can, I shall not worry if it is not my lot to see. Ihave very clear visions from my own little mountain of the promised land that my great-grandchildren and their youngsters will live in. It will be as far removed from us as we are from the days of Sir Henry Wotton, but what was good common-sense in his day will be good common-sense in theirs, as it is in ours, and ever shall be, world without end.