by Ken Leyton-Brown. Vancouver: University of British Columbia Press, 2010. 216pp. Hardcover. CDN$85.00/US$94.00. ISBN: 9780774817530. Paperback. CDN$32.95/US$35.95. ISBN: 9780774817547.
Reviewed by Greg Marquis, Professor of History, University of New Brunswick Saint John. Email: gmarquis [at] unb.ca.
Execution was legal in Canada until 1976, when the death penalty was abolished under the Trudeau government. The de facto end to executions was in 1962, when two convicted murderers were hanged in Toronto’s Don Jail. In the preceding years, the sentences of most convicted murderers had been commuted to life in penitentiary. Between Confederation in 1867 (when the federal government acquired control of criminal law) and abolition, several hundred people were hanged in Canada’s local jails (unlike in the United States, hanging was the only method of execution used). An equal number of convicted murderers also had their sentences commuted. Historians have produced case studies (such as the 1899 trial and execution of Hilda Blake, a Manitoba domestic servant), analyzed how race, ethnicity, religious and social class have affected murder trials and campaigns for executive clemency, and explored the evolution of issues such as criminal responsibility in legal practice. Ken Leyton-Brown attempts something different, an examination of “what befell those who left the death cell only to go to the gallows” (pp.viii-ix). His view, influenced by practice theory, is that execution can be understood as “a complex social institution” (p.ix). Leyton-Brown refers to earlier work on structuration theory by the sociologist Anthony Giddens (1986), which informs historical thinking about execution and practices surrounding it as ritual. The primary sources for this study are federal Department of Justice Capital Case Files, which were created for each prisoner sentenced to death, and newspapers in a dozen cities in seven out of Canada’s ten provinces.
Leyton-Brown argues convincingly that execution was “a social institution (p.8) and that the authorities used these occasions for a number of public purposes, including ‘Canadianizing’ First Nations and immigrants and reinforcing the legal and social order. In Canada there was no organized movement against the death penalty until the mid 20th century, but the new Dominion followed British practice in 1869 by amending its criminal law to make executions ‘private.’ This gave legal force to a trend that local authorities had been practicing for a number of years. Henceforth, only justice officials and possibly members of the press would be present at hangings that took place inside jail compounds. The public, who once gathered in large numbers to witness executions, was notified by a black flag and a toiling bell, as well as by newspaper accounts of the final hours of the condemned, the hanging and the post-mortem inquest. Over the next several decades some of the traditional practices surrounding [*266] execution changed or were no longer practiced uniformly, but important continuities remained. The author classifies the stages of the practice of execution: trial and sentencing, redemption, confession, procession, hanging, display, inquest and finally, disposal of the remains of the executed.
Aware of modern miscarriages of justice, Leyton-Brown, in the chapter on trial and sentencing discusses how judges in murder trials attempted to separate, in the minds of jurors, a guilty verdict from the inevitable death sentence. Judges often disagreed when juries issued recommendations for mercy. The latter tended to be issued where the convicted was young or female, or when two or more persons had been convicted for a single death. Chapter 3 discusses how and why the period between sentence and execution grew longer over time, in part because of logistical reasons (all capital cases needed to be reviewed at Ottawa) and in part to allow time for possible appeals, based on new evidence, the defence of insanity or problems with the judge’s charge to the jury. Few appeals were successful, and at least half (the percentage was even higher in the early decades) of the condemned failed to benefit from clemency. The result was a delay during which the guilty were assumed to play their socially-expected role: guided by spiritual advisers, they were to die ‘redeemed’ in the eyes of society, by accepting their deserved fate. Often this process involved religious conversion. Related to this was the ritual of confession, which made “the condemned person complicit in his own punishment” (p.49). A death cell confession, often written, also served to remove any doubt of guilt on the part of prosecutors, judges, jurors, sheriffs and the general public that justice had not been served. Confessions also could be part of the strategy, along with petitions from the community, for attempting to escape the noose by seeking executive clemency. Not all cases resulted in confessions, and some of them, released after execution, were of doubtful veracity. Another problem is that confessions were often written by educated ministers or priests who may have altered or embellished the details. Another trend noted by Leyton-Brown were confessions that attempted to protect another party from the full force of the law.
By the 20th century, the authorities were clearly discouraging publicized confessions; they also began to limit access to the traditional procession of the condemned, along with clergy, the sheriff, hangman and other officials, to the scaffold. After 1867 prisoners facing capital punishment in Canada were permitted a special last meal; frequently they also were allowed to wear their own clothing. Reporters covered these topics in great detail, at least in the late 19th and early 20th centuries, and also described the act of pinioning the prisoner’s arms behind their backs. Prisoners who resisted, fought back or displayed excessive emotion, who did not display penitence and humility, were faulted in the press for ‘ruining’ the execution. To counter this, on occasion the condemned would be drugged or provided with alcohol prior to the ordeal.
The chapter on hanging discusses the evolution of technology, techniques and related customs, again emphasizing how the public, and even officials, were increasingly removed from the process. [*267] It also notes that public attitudes towards official hangmen, such as Arthur Ellis, were decidedly ambivalent. Because murder convictions were infrequent, executions were geographically dispersed (in county jails), and the officials involved generally untrained or unprepared, each execution usually required the building of a scaffold. For a period in the late 1800s, experiments were made with a system that used heavy weights that would jerk the body upward, hopefully breaking the neck and causing instant death. For the most part, jail authorities preferred the drop method, where the prisoner fell through a trap door to their death. This chapter includes a detailed (and depressing) discussion of things that could go wrong at a hanging, including decapitations, death by strangulation and, in rare cases, the need to re-hang the prisoner. The author estimates that up to half of all hangings in Canada were “mishandled” (p.97).
As THE PRACTICE OF EXECUTION explains, death did not release the body of the condemned from its obligations to the state. The classic public execution had been the ultimate act of ‘display,’ but even before the Canadian parliament changed the rules of execution in 1869, the public’s gaze was being limited. One step was to cover the lower part of the scaffold from public view; another was to confine executions to within the walls of the local jail. In 1899 a curious and aggressive crowd attending the execution of Cordelia Viau and Samuel Parslow at St. Scholastique, Quebec rushed the scaffold and tore down the lower covering to view the bodies. This and other incidents convinced the authorities to further limit public access. Details that otherwise seem mundane, such as the length of time a body was permitted to hang after death, do not escape the author’s scrutiny. Only the bodies of the most violent offenders, or those lacking a degree of public sympathy, were suspended from the gallows for the official one hour required in federal regulations; many were cut down after ten minutes. Another practice connected with execution by the Confederation era was the medical inquest. Medical dissection of the deceased could be viewed as a further deterrent against crime, but the role of the coroner’s jury was also to officially determine that the correct person had been executed. The presence of a jury, according to Leyton-Brown, was another tactic for assuring the appearance of legitimacy and competence of the execution process. Most cadavers were eventually buried, but on occasion various organs were donated to hospitals as research specimens. Surgeons were particularly curious about the brains of violent criminals. Leyton-Brown concludes that many post-mortem examinations exposed “the horrible suffering of those who died and the shameful incompetence” of executioners (p.126). He also argues that the authorities began to limit public and press access to detailed information on actual executions and coroner’s inquests, and in some cases to mislead the public and cover up the truth.
The final, and in many ways most macabre, chapter deals with how the authorities disposed of the bodies of the hanged. The starkest examples of this in English criminal law were the traditional punishments for high and petit treason, ended with the destruction of the corpse. Gibbeting (hanging the body in chains) was not formally abolished until 1834. [*268] The 1869 Canadian regulations mandated that the body be buried within the grounds of the jail, unless the provincial government permitted other arrangements. Families and friends of many condemned prisoners naturally sought to claim their bodies for Christian (and in some cases Jewish) burial. In many cases the authorities denied the requests of relatives, and the executed were buried in unmarked graves within jail grounds, decomposition hastened with quick lime. The other extreme was the case of Thomas Dowd, a Catholic hanged at St. Andrew’s, N.B. in 1879 for murdering his wife. Dowd, who had impressed his priest as genuinely penitent, was honored by a high mass and interment in the Catholic cemetery. Leyton-Brown’s research reveals a wide diversity of practices in terms of this final practice connected to execution.
The author concludes that the rituals of execution, although not always enjoying universal support, helped to preserve the institution of capital punishment in Canada. At the same time, parts of the institution were changed and weakened over time. As noted above, in addition to removing the actual execution from the public’s view, the authorities gradually limited the flow of information from the death cell, and limited and eventually banned the involvement of reporters from the procession and execution. Leyton-Brown concludes that the state became less confident of the practice of execution: it had become “distasteful and even shameful – something to be hidden (p.150). Media coverage of Canada’s last hangings, of Arthur Lucas and Donald Turpin in 1962, was minimal compared to past reporting, and included details on anti-capital punishment protestors and critical commentary from abolitionists.
It is difficult to find any major faults with this study, which is a welcome addition to Canadian legal history. It is well researched and organized and contains valuable information in the endnotes. The book raises several important questions for future research, such as how the ‘redemption’ and ‘confession’ patterns of the prisoners whose sentences were commuted differed from those who were hanged. One area that might have been explored further, given Leyton-Brown’s reliance on the press as a primary source, is the role of the media in ‘creating’ public knowledge on crime. This would build on the work of other criminal justice historians who have stressed the subjective depiction of crime and punishment as well as its objective reality.
Giddens, Anthony. 1986. THE CONSTITUTION OF SOCIETY: OUTLINE OF THE THEORY OF STRUCTURATION. Berkeley: University of California Press.
© Copyright 2011 by the author, Greg Marquis.