CHAPTER X
On Capital Punishment
One of the questions which is most frequently put to me is, whether I consider capital punishment is a right and proper thing. To this I can truly answer that I do. For my own part I attach much weight to the Scripture injunction, “Whoso sheddeth man’s blood, by man shall his blood be shed,” and I think that the abolition of capital punishment would be a defiance of the divine command. Therefore I would not abolish capital punishment altogether, but, as I shall explain later, I would greatly alter the conditions under which it is imposed.
Perhaps many of my readers will say that the Scriptural command should have no weight, and others will say that it was a command given under the “dispensation of Law,” while we live under the “dispensation of Grace.” Therefore I would argue that, quite apart from any consideration of a religious nature, capital punishment is absolutely necessary for the checking of the greatest criminals.
In the discharge of my duties as a policeman, both in the Nottingham, in the Bradford, and in the West Riding Police force, I have had many chances of studying the ways of life and thought of the criminal classes, and I have paid a great deal of attention to the subject. As the result of my experience I can safely say that capital punishment, and “the cat,” are the only legal penalties that possess any real terrors for the hardened criminal, for the man who might be called a “professional” as distinguished from an “amateur” ruffian. Such a man does what he can to keep out of prison, because he dislikes restraint, and routine, and sobriety, but this dislike is not strong enough to deter him from any crime which offers even a chance of escaping scot-free; and I do not think that the fear of imprisonment ever occurs to him when he has once got criminal work actually in hand. Penal servitude, even for life, has no very acute terrifying influence, partly because no criminal ever believes that it will be a reality in his case, as he feels sure that he will get a commutation of sentence; and partly because, even if he were sure that the imprisonment were actually for life, he knows that prison life is not such a dreadful fate, after all – when one gets used to it. But when it comes to a question of a death sentence it is quite another matter. Death is a horrible mystery, and a death on the scaffold, a cold-blooded, pre-determined, and ignominious death is especially horrible to the criminal mind. As a rule the most desperate criminals are those who are most terrified by the thought of death at the hands of the executioner, possibly, because the most desperate men spring from the most superstitious class of the community, and have the greatest dread of that “something” after death which they cannot define.
The criminal classes do not neglect their newspapers, but keep themselves pretty well posted, either by reading or conversation, upon the subjects that are of most direct interest to them, and follow all the details of the most important criminal trials. In this way they always keep more or less before them the thought of the nature of capital punishment, and I believe that it will be found that the number of capital crimes in any given period is inversely proportionate to the number of capital punishments in the immediately preceding period. Whenever there is a series of executions, without reprieves, the number of murders decreases, and on the other hand, after a period in which several persons have been tried for murder and acquitted, or reprieved after sentence, the number of crimes appears to increase. I do not think that this rule can be demonstrated forcibly and convincingly by a reference to the mere numbers of murders, convictions, reprieves, and executions during the past few years, because there are many considerations which bear upon the significance of an execution or reprieve; but I think that anyone who has given attention to the subject will bear me out in my contention.
Undoubtedly the fear of death is a great deterring power amongst abandoned men, and the fear is most powerful when the death seems most certain and the hope of reprieve most remote. This consideration leads me to think that the deterrent value of the death sentence would be greatly increased if it could be made absolutely irrevocable. Considering capital punishment as a moral power for frightening criminals still at large, I think it would be much better, if in all cases where there is the slightest possible chance of reprieve, the sentence were suspended for a time.
I advocate that the sentence of death, once passed, should be a sentence which the doomed man, as well as his friends and sympathisers who are still at liberty, should regard as quite irrevocable. At the same time I do not advocate an increase in the number of executions – just the reverse. As the best means to this end I think we ought to have a considerable alteration in our criminal law as it relates to murder cases. I think that the jury should have more power over the sentence, and for this purpose I think that they ought to have the choice of five classes of verdict, namely: —
Not guilty.
Not proven.
Murder in the third degree.
Murder in the second degree.
Murder in the first degree.
In the case of a verdict of “Not Guilty” the prisoner would, of course, be acquitted, and would be a free man as he is with such a verdict at present.
In the case of the verdict of “Not Proven” it should be within the power of the judge to remand the prisoner, pending the further investigation of any clues that might seem likely to throw light upon the case; or to release him, either with or without bail or police supervision.
A verdict of “Murder in the third degree” would be brought in in cases where there was undoubted proof of the crime being committed by the prisoner, but in which the circumstances were such as to make it extremely unlikely that the prisoner would ever again commit a violent crime. This would cover the cases of people who shoot their friends and then plead that they “did not think it was loaded,” and would be a much better verdict than the “accidental death” which is generally returned at present. When the jury find this verdict of murder in the third degree it should rest with the judge to impose a term of imprisonment, long or short, according to the circumstances.
“Murder in the second degree” would embrace cases in which the murder was fully proved but in which there was not premeditation or intent to murder. Under this head would come a number of deaths resulting from rows, brawls, and assaults without intent to kill. The judge would have the power to pass a sentence of death or of penal servitude for life.
“Murder in the first degree,” in which both intent and result had been murder, would be a verdict leaving the judge no option but to impose the death penalty.
Another question which ought to be considered in this connection is the question of appeals. At present appeals are made to the Home Secretary. He is really assisted by a number of other gentlemen, who examine most thoroughly into the original evidence, and any additional evidence that may have turned up, but this is a tribunal not legally appointed, and the public notion is that in cases of appeal the reversal of the sentence lies in the hands of one man. I do not think that even the most abandoned wretches would impute any unfairness to the English Home Secretary, but I know that in many quarters there is an idea that the Home Secretary is “a very kind gentleman,” who will “let ’em off” if he possibly can, and such an idea seems to be a very mischievous one. A court of appeal would appear less personal, and would be far less likely to be suspected of leniency if it consisted of three judges, one of whom should be the judge who had originally tried the case. To such a bench of judges I would allow appeals to be made, and would give them power to re-open cases, refer them back to the juries, or to modify sentences, but not to reverse a jury’s verdict. This would mean that in the case of a verdict of “murder in the first degree,” the only way in which the execution could be prevented would be by referring the case back to the jury, and this should only be done on the production of new evidence pointing to a miscarriage of justice. In the extreme case of evidence turning up at the last moment, the Home Secretary should have power to grant a stay of execution for such length of time as would allow the bench of judges to re-open the case.
The drawing up and presentation of petitions by people who are in no way connected with the case, would to a great extent be done away with under such a system as I have outlined, but in order to provide for cases where the system might not have this effect, I would make it a punishable offence to attempt to influence the decision of the judges or jurymen, by an appeal to any consideration other than the evidence. This advice I give because in so many, nay, in most cases, the appeals contained in petitions are based upon considerations other than the justice of the case. If the condemned person is an interesting character, or if there is any sort of excuse upon which an appeal can be based, there are always a great number of people who have no special knowledge of the case, and who, perhaps, have not even read the newspaper reports, who are ready to get up petitions, collect signatures, and stir up a lot of sympathy for one who too often deserves nothing but execration and contempt. Such agitations lead to much misrepresentation of facts, and often to sweeping condemnations of the judge and jury. They tend to infuse, in the minds of young people especially, an incorrect notion that the administration of the law is uncertain and ineffectual, even if it is not unjust and corrupt.
The mere fact of the extent to which the consideration of loathsome crimes and their punishment is brought under the notice of children by this system of petitions, is in my mind sufficient argument for its complete suppression. One case I might instance, in which the masters of two public schools led the whole of the children under their charge through an ante-room in which a petition was lying, and made them all sign it in turn. This kind of thing occurs whenever a petition praying for a sentence of death to be reversed or commuted is in the course of signature, and surely such a thing should not be possible.
In many cases the people who draw up these petitions are people who object on principle to all capital punishment, but unfortunately the principle is entirely lost to sight when dealing with individual cases. The fact of big petitions being presented in one case, while no effort is made in another case with similar features, naturally leads uneducated people to think that there is uncertainty and injustice about the whole affair.
There is still one other respect in which I think that our law with reference to murder and the death penalty ought to be altered, and that is with regard to the length of time allowed to elapse between sentence and execution. In the interests of all concerned I would reduce the time from three clear weeks, as at present, to one week only. No doubt many readers will cry out against this as an unnecessary cruelty to the condemned, but I say that I would do it in the interests of all after full consideration and an unusually full knowledge of the ideas of the condemned upon the subject. It is not a shorter time that would be a cruelty – the present long time is where the real cruelty comes in.
So far as I know, the three weeks’ “grace” given to the condemned man is intended as a time for repentance and for attending to the affairs of the soul. Therefore, the question of allowing a long or short time is to a great extent a religious one, and dangerous for me to tackle, so I will confine my remarks as far as possible to matters of fact and mere common-sense considerations. If the only purpose of the time allowed between sentence and execution is to admit of conversion and a preparation for heaven, it is fair to ask of anyone who wishes to continue the present system, whether it serves the purpose. If not, there would seem to be no valid argument in favour of its continuance. Personally, I am convinced by long experience, that the hope of regeneration during three weeks in the case of murderers is absolutely vain. There are many instances in which the criminal becomes “penitent,” as it is sometimes termed, and these penitents may be divided into two classes. Firstly, there is the class of those who have committed murder without intent or premeditation. In a fit of frenzy or under peculiar circumstances they have killed a human being. It may be a half-starved mother who has killed the baby she could not feed, or a man who in a whirlwind of temper has killed the unfaithful and miserable wife whose conduct has made his life a hell upon earth for years. It may be many another similar case which under the scheme of five possible verdicts, propounded above, would be returned as murder in the second or third degree. Under such a law the extreme penalty would not be imposed; but while we are under our present law, and supposing that these persons are condemned, without chance of reprieve, we may fairly ask whether the three weeks’ grace is an advantage to them. Such criminals are truly repentant, or rather, remorseful. As a rule, the enormity of the crime bursts upon them in the first calm moment after its commission. They recoil in horror from the deed they have done and would gladly sacrifice anything, even life itself, to undo that deed again. There is true repentance, which I take it is the key to forgiveness, even before their apprehension and condemnation. Everything that can be done on earth by or for such poor souls, can be done in a week, and they would not ask for more. Their repentance is sincere, their horror of their crime is greater than their dread of death, which they welcome as a means of expiation. Is any good purpose served by keeping such people for three weeks in agony?
The second class of “penitents” consists of a horrible section of humanity – the cowardly desperadoes. These are usually men whose crimes have shown a refinement of cruelty and callousness that is positively revolting. They are the “hardened” or professional criminals whose hearts are devoid of pity or remorse, and equally devoid of the least spark of courage. They are the miserable men whose lives have been spent in defying and blaspheming God, but who, when they see death before them, whine and howl, and beg for the intercession of the chaplain or any other godly person they may meet with, not because they repent of their sins, but because they are frightened almost to death by the thought of a fiery hell, which has been painted before their imaginations in glowing colours. To such men as these I am sure that the shortening of the waiting time would be the greatest possible mercy, for the longer time only gives them opportunity to work themselves into an almost demented state. At the end of three weeks they are often so broken down and hysterical as to be incapable of correctly understanding anything, and their only remaining feeling is a wild, frantic dread of the scaffold.
Besides the two classes of penitents, there only remains the class who are not penitent at all. They are mostly men who have been long acquainted with crime, who have made it the business of their lives. They look upon the law and its officers much as a business man looks upon a clever and unscrupulous competitor; and upon a sentence of death as one of the business risks. Life ends for them, not at the scaffold, but in the dock, when sentence is pronounced. From that time they sink into a state of sullen indifference, or take up any occupation that may offer, merely to kill time. In some cases they take to Bible reading and prayers, because they think “it can’t do any harm, and may do a bit of good,” and because they have nothing else to do. No one can say that such men are penitent, since on release they would return to their vicious ways. They would not be likely to reach any better state if they were allowed to live three months instead of three weeks, for the only regret that they can be brought to feel is personal and purely selfish. It is founded on fear of hell, and is not a contrition for having committed the crime, but a regret that the crime carries with it a punishment in the next world. Convicts of this class, when they have no hope of reprieve, do not thank us for the three weeks of “life” that are given to them. If they could have their own choice, they would prefer to walk straight from the dock to the scaffold, and to “get it over” at once.
In every case if the matter is thoroughly inquired into, on lines of common sense instead of mere sentiment, I think the conclusion will be that the three weeks allowed are no advantage whatever to the convicts. In most cases their position would be decidedly improved by reducing the time.
There are other distinct advantages to be gained by reducing the interval. In the first place it would greatly improve the moral effect of the death sentence. Retribution following directly after conviction is a distinct object lesson, and the shorter the time between, the more obvious is the connection between the crime and the punishment. When even three weeks elapse the connection is often lost.
In the second place, the alteration I advocate would greatly prevent the stirring up of false sentiment in favour of convicts who happen to have an interesting personality. It would put a stop to the petition signing which is often indulged in by people who know nothing of the case, but who are worked upon to express sympathy with the convict, and want of faith in the justice of our system of trial. If only a week elapsed between sentence and execution, the facts of the trial and details of the evidence would remain fresher in the public mind, and people would be less liable to be led to mistrust the justice of the sentence.
To all the people who have charge of the convicts before execution, a shortening of the time would be a great blessing, for such a charge is often a soul-harrowing experience. The chaplains especially, whose experiences are often most unpleasant; and whose earnest efforts meet with such disappointing return, would, I think, welcome the change.
CHAPTER XI
Hanging: From a Business Point of View
I have stated in Chapter II. the reasons which led me to take the office of executioner. The reader will remember that I then claimed no higher motive than a desire to obtain a living for my family, by an honest trade. I am not ashamed of my calling, because I consider that if it is right for men to be executed (which I believe it is, in murder cases) it is right that the office of executioner should be held respectable. Therefore, I look at hanging from a business point of view.
When I first took up the work I was in the habit of applying to the Sheriff of the County whenever a murderer was condemned to death. I no longer consider it necessary to apply for work in England, because I am now well known, but I still send a simple address card, as above, when an execution in Ireland is announced.
In the earlier days I made application on a regular printed form, which gave the terms and left no opening for mistake or misunderstanding. Of this form I give a reduced reproduction on opposite page. I still use this circular when a sheriff from whom I have had no previous commission writes for terms. The travelling expenses are understood to include second-class railway fare from Bradford to the place of execution and back, and cab fare from railway station to gaol. If I am not lodged in the gaol, hotel expenses are also allowed. As a rule the expenses are not closely reckoned, but the sheriffs vote a lump sum which they think will cover it; and if the execution has been satisfactory the sum granted is generally more than enough to cover what I have spent.
There are, on an average, some twenty executions annually, so that the reader can calculate pretty nearly what is my remuneration for a work which carries with it a great deal of popular odium, which is in many ways disagreeable, and which may be accompanied, as it has been in my own experience, by serious danger, resulting in permanent bodily injury. It will be seen that the net commission is not by any means an exorbitant annual sum, considering all the circumstances of the office; and that it does not approach the amount which some people have stated that I was able to earn.
Of course, my earnings are entirely uncertain, since they wholly depend upon the number of executions, and this arrangement, by which my livelihood depends upon the number of poor fellows condemned to die, is, to me, the most repugnant feature of my work. It seems a horrible thing that I should have to peruse newspaper reports in the hope that a fellow-creature may be condemned to death, whenever I wish to feel sure that “business is not falling off;” and that I should have to regard as evil days and hard times those periods when there seem to be lulls in the annals of crime, and when one might reasonably hope that a better state of things was dawning in the land.
These considerations, and the more selfish but still perfectly natural wish to be certain of my income and of my ability to give my children a fair start in life,[Pg 119][Pg 120] have led me to strongly approve of the suggestion that the executioner’s office should be a Government appointment, with a fixed salary instead of an uncertain commission. When the Lords’ Committee on Capital Punishment was sitting, early in 1887, I expressed my views on this matter in a letter addressed to the President of the Committee, Lord Aberdare. I am not without hope that a change in the arrangements for regulating the office of executioner will ere long be made, and the lines on which I think that it might be most reasonably and satisfactorily done, are set forth in the letter to Lord Aberdare, which I append.
1, Bilton Place,
City Road, Bradford.February, 1887.
My Lord,
I have been for some time past in correspondence with Mr. Howard Vincent, M.P. for Sheffield, with reference to alteration in the mode of remunerating my services, in carrying into effect the Sentence of the Law upon Criminals convicted of Capital Crimes. Mr. Howard Vincent has suggested that I should address myself to the Honourable Committee on Capital Punishment, through your Lordship as their President.
I would therefore respectfully point out to your Lordship and your Honourable Committee that the present mode of payment for my services is unsatisfactory and undesirable, and that a change is needed.
As your Lordship is doubtless aware, under the existing arrangements I am paid the sum of £10 together with travelling and other incidental expenses for each Execution conducted by me. There are, on an average, roughly speaking, 25 Executions yearly. What I would respectfully suggest is, that, instead of this payment by Commission, I should receive a fixed salary from the Government of £350 per annum. I may say that since accepting the Appointment I have never received less than £270 in any one year. I am informed that in determining a fixed Salary, or Compensation in lieu of a payment by Commission, the average annual amount received is made the basis for the calculation.
It will be apparent to your Lordship that an offer of a less sum than the former average would not be sufficiently advantageous to induce me to exchange the old system for the new. I may further, with your Lordship’s permission, draw attention to the peculiar Social position in which I am placed by reason of holding the office before referred to. I am to a great extent alone in the world, as a certain social ostracism is attendant upon such office, and extends, not to myself alone, but also includes the members of my family. It therefore becomes extremely desirable that my children should, for their own sakes, be sent to a school away from this town. To do this of course would entail serious expenditure, only to be incurred in the event of my being able to rely on a fixed source of income, less liable to variation than the present remuneration by Commission alone. I am also unable for obvious reasons to obtain any other employment. My situation as boot salesman held by me previous to my acceptance of the Office of Executioner, had to be given up on that account alone, my employer having no fault to find with me, but giving that as the sole reason for dispensing with my services.
My late Employer will give me a good reference as to General character, and the Governors of Gaols in which I have conducted Executions will be ready to speak as to my steadiness and also my ability and skill on performing the duties devolving upon me.
In conclusion I should be ready to give and call Evidence on the points hereinbefore referred to (if it should seem fit to your Lordship and your Honourable Committee), on receiving a notification to that effect.
Under these circumstances I trust that your Lordship will be able to see the way clear to embody in your Honourable Committee’s report a recommendation to the effect that a fixed annual sum of £350 should be paid me for my services rendered in the Office of Executioner.
I have the honour to be
Your Lordship’s Obedient humble servant,
James Berry.
To the Right Honourable Lord Aberdare.President,
Capital Punishment Committee,Whitehall, London, S.W.
P.S. If your Honourable Committee has an alternative to the foregoing proposal I would respectfully suggest that I am permanently retained by the Home Office at a nominal sum of £100 a year, exclusive of fees at present paid to me by Sheriffs of different Counties and the usual Expenses.
In connection with this subject I should like to point out that in asking for the office of executioner to be made a recognised and permanent appointment, I am not suggesting any new thing, but merely a return to the conditions in force not much more than fifteen years ago. Up to 1874 the executioner was a permanently established and recognised official. Mr. Calcraft, the last who occupied this position, was retained by the Sheriffs of the City of London, with a fee of £1 1s. 0d. per week, and also had a retainer from Horsemonger Lane Gaol. In addition to his fees he had various perquisites, which made these two appointments alone sufficient for his decent maintenance, and he also undertook executions all over the country, for which he was paid at about the same rate as I am at present, but with perquisites in all cases. In 1874 he retired, and the City of London allowed him a pension of twenty-five shillings a week for life.
Mr. Calcraft’s successor was Mr. Wm. Marwood, who had no official status. He had a retaining fee of £20 a year from the Sheriffs of the City of London, but beyond that he had to depend upon the fees for individual executions and reprieves. In his time, also, there were considerable perquisites, for instance, the clothing and personal property possessed by the criminal at the time of his execution became the property of the executioner. These relics were often sold for really fancy prices and formed no mean item in the annual takings. But the sale and exhibition of such curiosities were only pandering to a morbid taste on the part of some sections of the public, and it was ordered by the Government – very rightly, from a public point of view, but very unfortunately for the executioner – that personal property left by the criminals should be burned.
In many other countries the post of executioner is permanent. In some cases it is hereditary, as in France, where it has remained in the Deibler family, passing from sire to son, for a great length of time.
Even in British territory at the present time a permanent official hangsman is not entirely unknown, for in Malta the post is a definite appointment, to which a salary of £30 is attached.
In England the Sheriff is the officer appointed to carry out the executions, and though he is allowed to employ a substitute if he can find one, it would fall to him to personally conduct the execution if no substitute could be obtained. In certain cases, in days gone by, there has been very great difficulty in securing anyone who would undertake the unpleasant duty, though I do not remember any recorded instance of the Sheriff being absolutely unable to engage an executioner.