"what have you to say why judgment of the court should not be pronounced against you according to law?"

with these words begins the final chapter of the convict's history. he has been arraigned for the last time at the bar of justice, after a jury of his peers has declared him "guilty," and now awaits his sentence.

the judge who presides at the trial of a criminal case does but begin his labors when he receives the jury's verdict. if he be a man of sensibilities the strain of a trial is as nothing compared with the responsibility of determining whether the defendant shall be let go free under a "suspended" sentence or ordered to prison. no one appreciates the horror of prison life or its effect upon the individual better than the judge himself, and he may pass many a sleepless night before sentencing a man whose circumstances and whose years suggest the possibility of reformation.

where the defendant has been found guilty of murder in any of its degrees the judge is, of course, relieved of the responsibility of determining the sentence, which is fixed by law, and the interrogation of the clerk must seem but a mockery to the prisoner, who knows that, whatever he may say in his own[pg 262] behalf, the judgment of the court will be the same. for this reason counsel rarely address the court upon the sentence in such a case, but sometimes the prisoner himself seeks a last public opportunity to assert his innocence or proclaim his repentance.

on saturday morning, march 21, 1829, richard johnson, convicted of the murder of ursula newman, was brought to the bar of the new york court of oyer and terminer, and was asked what he had to say why judgment of death should not be pronounced against him according to law. in the faded ink of the records of the general sessions is inscribed the following:

the prisoner replies:

if your honor please. i am asked what i have to say why judgment of death should not be pronounced against me? to this i reply—to the judgment of the law, nothing. a jury of my country has pronounced me guilty; and there remains no discretion with the court but to pronounce upon me the sentence of the law. but to the judgment of the world i have much to say. i have been convicted of a crime the bare recital of which causes humanity to shudder. and it is a duty which i owe to myself while living, and to my memory when dead that the circumstances of my offence should be fully explained. before entering into the detail, i must take this public opportunity in the name of that omniscient and all-merciful being who will hereafter pronounce his judgment, alike upon my judges & myself, of disclaiming any knowledge of the transactions of that fatal 20th of november. i do not mean to impugn the decision of the jury; the movements of the mind were beyond their power to penetrate; and hard as is my fate i humbly bow to their verdict. i cannot here enter fully into the details of my intimacy with the unfortunate cause of my present awful situation. duped and betrayed as i have been into sorrow and bitter despair, and lastly involuntary crime i am unwilling while living to indulge in unavailing reproaches. in life the deceased was the object of my tenderest affection. an affection that her own unkind conduct seemed to inflame, and that, baffled in its honor[pg 263]able purpose—expelled reason from her throne, and, in its absence, led to the commission of the offence, for which i am now to satisfy the offended community by my own life. was i conscious of any moral guilt, at this result i should not repine. accustomed throughout my life to respect the law, i have not now to learn that the blood of the murderer is alike a propitiating sacrifice to the laws of god and man. convicted of the legal crime i know my fate. for the moral offence i have to answer to my conscience and my god; and that innate monitor tells me, that i stand before this court and this community a legal but not a moral murderer. to my counsel who have so ably though vainly made my defence, i tender my warmest thanks. of the court i have but one request to make, that the period allowed me to prepare for my impending fate may be as long as the law will permit.

the sentence of the court was then pronounced.

compare this solemn and thrilling declaration with what occurred upon the sentence of dr. carlyle w. harris, convicted of the murder of his girl-wife by the administration of morphine capsules which he compounded and furnished to her. he had married her secretly under an assumed name and in all probability had never intended to recognize her as his wife. events finally rendered it impossible for him to conceal the marriage longer, and, realizing this, he procured for her the medicine which caused her death. harris was a gentleman,—or rather he was a very debonair, nonchalant, and brazen imitation of one. throughout his trial he had preserved an absolutely unruffled exterior, chatting affably with counsel and court attendants, and receiving the verdict with undiminished equanimity. on the day set for his sentence he came into court with the easy and gracious manner of a young man paying an afternoon call. he was arraigned at the bar and the recorder [smyth] proceeded to re[pg 264]hearse the history of his terrible crime and stigmatize the loathsome character of his act. harris listened politely, and apparently endeavored to show a considerable interest in his remarks. then the recorder made some slight error in giving a date.

"pardon me, your honor," interrupted the blithe defendant, "it was the eighteenth and not the nineteenth——" and corrected him.

the recorder frowned and replied with dignity.

"that is a matter of slight importance!"

"i beg your honor's pardon," returned harris flippantly; "you see, i have never been sentenced to death before, and am not as familiar with the procedure as might be."

unpleasant as is the duty of the prosecutor who is obliged to move that the sentence of death be pronounced, it is less terrible than listening to the few simple but hopeless words that doom a convict to life imprisonment. the murderer must die; but it will soon be over. the ghost of his victim will in a few weeks cease to haunt his dreams. but the "lifer"! who can picture the horror of a life-time of repentance or of mocking remorselessness? "civilly dead," he is doomed to drag out his weary years in an earthly tomb, a silent, forgotten creature, numbered like a human specimen, enduring all the tortures of purgatory until the end seems a far distant haven of oblivion. the court-room echoes, like the empty future of the white-faced prisoner, to the dull fall of the words upon his barren soul—"for the rest of your natural life." the listener shudders. "god grant that it be short!" he murmurs, then looks away.

[pg 265]

of course, in the seventeenth century and early in the eighteenth all felonies were punishable, not only in england but in america, by death. when the severity of punishment began to be abated and imprisonment substituted for the extreme penalty, all sentences were for a fixed and definite term, and the only way that the convict could obtain release or secure the modification of his sentence was by pardon from the supreme executive authority of the country.

sometimes a ray of sunshine illumines the dreary pages of these parchment-bound volumes, the stiff phraseology of the crabbed entries failing to obscure it. for example, on monday morning, march 29, 1784, "the court met pursuant to adjournment" and was "opened by proclamation." the grand jury came into court and presented an indictment against one sylvia, a negro slave, "for stealing monies from alexr johnson."

"the prisoner being set to the bar and arraigned, did plead guilty, and for trial put herself upon god and the country." her case was immediately moved. one witness, the alexander johnson mentioned, testified.

"the jury without going from the bar say, that they find the prisoner at the bar guilty of the felony whereof she stands indicted...."

just one week later, sylvia, now a convict, "was called to the bar, for judgment, and it being demanded of her in the usual manner what she could say for herself why judgment of death should not now pass against her, according to law, she did produce and plead a pardon of the people of the state of new york, under the great seal, bearing test the[pg 266] 31st march, 1784, which was read and allowed, and the prisoner discharged."

sylvia was undoubtedly a valuable piece of personal property—valuable enough evidently to make it worth her master's while to urge his claims upon the governor for clemency.

white offenders did not always fare as well. but for them in the colonial times still occasionally remained that quaint old plea of "benefit of clergy." this lingered on as late as 1784, when the record shows that one john cullen, having been convicted of forgery,

"on motion of mr. attorney-general ... was sent to the bar for judgment, and it being demanded of him in the usual form what he could say for himself why judgment of death should not pass against him according to law, he prayed the benefit of clergy, which was granted by the court.

thereupon it was ordered that the said john cullen be branded in the brawn of the left thumb with the letter t in the presence of the court, and that the sheriff execute the order immediately, which was done accordingly."

benefit of clergy was the historic privilege accorded in england to all priests of being tried only in the ecclesiastical courts for their crimes. coke says that "it took its root from a constitution of the pope that no man should accuse the priests of holy church before a secular judge." as all common-law felonies (except petty larceny and mayhem) were punishable by death even as late as 1826, and as these felonies included homicide, rape, burglary, arson, robbery and larceny, and all were clergyable, it must have been a prerogative of considerable value to any member of the cloth of lively disposition.

[pg 267]

originally the privilege could be claimed before trial, and ousted the lay courts of any jurisdiction whatever, the right being strictly limited, however, to those who exhibited all the physical attributes and garb of priesthood, having "habitum et tonsuram clericalem," but long before (1350) it was provided that "all manner of clerks, as well secular as religious, shall from henceforth freely have and enjoy the privileges of holy church." as a priest's trial in the ecclesiastical courts was hardly more than a matter of form, with rarely any result save that of acquittal, he who could plead his "benefit" was practically immune so far as punishment for his crimes was concerned. in course of time the right was accorded only after conviction in the secular courts.

in 1487 it was provided that every person convicted of a clergyable felony should be branded in the brawn of his thumb, so that mere inspection would reveal second offenders. the letter m stood for murderer and t for thief or forger, as we have seen in cullen's case. the statute also provided that no person could plead his clergy a second time unless he were actually in orders. thus as late as 1487 practically any one who could read or write might commit as many crimes, including murder, as he chose, with no fear of punishment save of having to make his purgation, and after that date could, so to speak, have one murder, arson or larceny and escape with branding, while the priest in orders continued free to violate the law to his heart's content. perhaps this wholesale extension of the privilege was made in the interest of education and as an incentive to literary accomplishment. it certainly put[pg 268] a premium on learning which a mere "degree" could not offer.

from the beginning of the eighteenth century on (the privilege having been extended by statute to all the inhabitants of england, male or female), any one, irrespective of his learning, could plead his clergy once to any crime that remained clergyable, if he could find one, and priests in orders could do so indefinitely. but the crimes which were clergyable were correspondingly reduced in number. in 1779 branding was practically done away with in england. (19 geo. 3, c. 74 s. 3.)

it is interesting to find the custom still in vogue in america as late as 1784, as shown by the case of cullen.[41]

in one or two of the southern states the plea lingered on for nearly another half century.

when the defendant could not avail himself of clergy and no pardon was at hand to save him, the law in the early days took its full and awful course. thus we read in the first almost illegible volume of the records, the phraseology of the sentence, save[pg 269] for its terms, being practically the same to this day:

att a court holden for the tryal of negro

and indian slaves at the citty hall of the citty of new-york,

on tuesday the 15th day of april, anno dom. 1712.

present:

caleb heathsope, } esquires,

william smith, } justices

edward blagge }

court opened—

the defendt tom being brought to the barr & having nothing to say for himself why

judgment of death should not pass agt him according to the verdict &c.

it is considered by the court that he be carryed from hence to the place from

whence he came and from thence burned with a slow fire that he may continue

in torment for eight or ten hours and continue burning in said fire untill he be

dead and consumed to ashes.

dom regina {

vs. {

tom the negro man, slave {

of nicholas rossvelt j.d. {

at present, when "benefit of clergy" is but a legal tradition, and pardons are obtained with difficulty, but one legal barrier can be raised to the interposition of sentence upon a convict—proof of his insanity. if, in the opinion of the court, there is reasonable ground for believing him to be mentally unbalanced, the question must be determined as provided in the code. if he is found to be sane, judgment must then be pronounced, but if found insane he must be committed to the state lunatic asylum until he recovers his sanity, and when notice is given of that fact he must be brought before the court for judgment. of course, he may also allege legal ground why the judgment should be arrested or why[pg 270] a new trial should be granted, but at this time a technical discussion of these motions would be unnecessary.

defendants are far less likely to feign insanity at the time of their sentence than they are upon the actual trial; for if a man is clever enough to act the part of a lunatic he is shrewd enough to realize that the best time to do so is before he has been convicted of the crime charged against him.

there is a reputed case, the memory of which still lingers around the criminal courts, where it is said that a defendant who was charged with murder in its first degree feigned insanity just before his case was moved for trial. this was many years ago, at a time when such a fact did not, of itself, necessarily excite the same suspicion that it does to-day. the issue of the defendant's sanity was tried before a lay jury, who promptly found that he was incapable of understanding the proceedings against him or of making proper preparation for his defence. he was thereupon committed to the state asylum for the insane, where he remained incarcerated for many years. it so happened that there was but a single eye-witness to the shooting, and the circumstances surrounding the affair were such that without the testimony of this witness it would be a practical impossibility to determine whether the deceased had been murdered or had committed suicide. after twenty years, in the course of which the defendant's lawyer had died and the entire family of the prisoner had either died or disappeared, another lawyer, who had found among some old papers a memorandum of the case, went to matteawan, located the defendant, and discovered, as he had[pg 271] anticipated, that he was entirely sane. a writ of habeas corpus was thereupon procured and the defendant brought back to new york.

in that time the entire aspect of the city had changed. buildings twenty-five stories in height had replaced those of six; the city had reached far up and entirely covered the island; electric surface cars had taken the place of ramshackle, bobtail horse cars. the defendant, prematurely aged and with clothes long out of date, impressed those in the court-room as a sort of rip van winkle, awakened after a long sleep. there was absolutely no question as to the man's sanity, and he was discharged upon the writ of habeas corpus and remanded to the tombs to await his trial. the following morning he was brought into court, and the district attorney moved that the indictment against him be dismissed on the ground that there was no longer any evidence upon which the people could proceed to prosecution. then for the first time the defendant discovered that the only witness against him had died ten days after he had been committed to the asylum. although the writer does not vouch for the authenticity of this story, the incident may well have happened.

in addition to the legal ground of insanity why judgment should not be imposed, a convict or his counsel may properly, on his arraignment, state to the court any general reasons for a mitigation of sentence or for its absolute suspension when such is within the discretion of the court, and few sentences are imposed without a more or less lengthy appeal for clemency from the defendant's lawyer, who usually does not confine himself merely to the con[pg 272]trition of the defendant, his past respectability and his pledges to lead a new and better life, but is prone to discourse volubly upon the reputable connections of the defendant, the hardship which a sentence will impose upon his family, and the fact that the complainant or those who have been interested in the prosecution now have a profound sympathy for the prisoner. the gist of many of these appeals is to the effect that because the defendant, by reason of his education and opportunities, ought to have known better than to commit crime, he should now, since he has discovered his mistake, be excused from paying the penalty. the judge invariably listens with courtesy to these orations, which are not often made with any idea of actually influencing the court's decision. they are grateful to the defendant and his family, and impress the latter with the fact that the lawyer is doing everything in his power to get his client off.

it is now the judge's soul is tried. how far may he temper justice with mercy? how far are the interests of the public and the prisoner irreconcilable? many youthful offenders, who have not hitherto been convicted, escape with a suspended sentence or a commitment to a reformatory—even when found guilty of crimes as serious as manslaughter or robbery. little mercy is shown to old offenders. in fact, the law now provides that they may be tried under an indictment charging them with having committed a "second offence," under which, if found guilty, they must be sentenced to the maximum penalty set for a first offence of the same crime.

it should be noticed that originally only one sen[pg 273]tence, and that a definite one, could be passed by the judge upon a prisoner for any given offence. at first there were no provisions of law granting to convicts as a matter of right any reduction or commutation of sentence because of good behavior. then laws were passed which provided for the definite commutation of the sentences of all convicts confined in state's prison. the question as to whether or not the convict had earned his commutation by good behavior was left to a board composed of the state superintendent of prisons and others. a carefully prepared scale or table showed exactly how much commutation it was possible for any prisoner to earn.[42]

in 1889 there was introduced into new york state for the first time what is commonly known as the "indeterminate sentence," that is to say, a sentence consisting of a minimum and a maximum term of imprisonment during which the prisoner may be discharged at the option of a board consisting of various persons, but distinct from that which passes upon the question of whether or not he has earned his "commutation." the introduction of this form of sentence is in conformity with the most recent and most enlightened view of the proper attitude of the state towards its criminals.

[pg 274]

whenever the indeterminate sentence has been introduced into any state it has been invariably attacked as being unconstitutional, but the courts have uniformly upheld it. the principal difference to be noted between "commutation" and "indeterminateness" of sentence is that the latter is vastly broader in effect, since only the prisoner's good behavior while actually undergoing his sentence in state's prison may be considered by the board which passes upon his commutation, while, in the case of the indeterminate sentence, the parole board may consider all the facts surrounding the commission of the crime, the convict's past life, and whatever other facts they see fit, as well as his good behavior during his period of confinement.[43]

after conviction the natural optimism of the human race reasserts itself and the defendant begins to believe that the worst is, after all, over, and to rely upon the assurances of his counsel or his political friends that the judge is going to be easy on him and give him a light sentence. terrible is the disappointment of such a one who finds that he is going to be sentenced to state's prison when he expected the penitentiary or to the penitentiary when he expected to be set free entirely under a suspended sentence.

the judge usually prefaces the sentence with a few remarks of an admonitory character, commenting upon the severity of the crime which the defendant has committed, and upon the fact that it is within his power to sentence the latter to a long term of imprisonment. he generally adds that, under all the circumstances and considering the fact that the de[pg 275]fendant has never been convicted before and has hitherto led a reputable life, he will be merciful and give him only so and so many years in state's prison.

of course, this occurs only in such cases as deserve leniency. but where the defendant is a hardened criminal, or an ex-convict, or when his crime is one of atrocity, he is apt to learn, in no unmeasured terms, what the judge and the community think of him. the writer has heard a prisoner censured in such language that he blushed for the human race of which the convict could be the offspring. most defendants receive their sentence with imperturbability, for they are able with approximate accuracy to figure out what punishment they will probably receive. the experiences of their acquaintances in the tombs are of great assistance in this matter, yet more than one convict falls senseless on the floor when sentence is pronounced upon him, and hundreds lose their nerve and stagger away bewilderedly at the thought of the interminable years before them.

yet a layman happening to be present on a friday in the court of general sessions would be surprised at the apparent lightness of most of the sentences. the judges of our criminal courts are merciful men and rightly believe that a year or two in state's prison has a better effect upon the defendant than a longer term. a short-term man emerges, at least it is so to be hoped, with some aspirations for the future and with health as yet not undermined. to most judges the infliction of sentence upon a fellow human being ever remains a bitter experience. in the old days, however, there were some judges who, not unlike jeffries, took a certain grim satisfaction in the performance of this duty. there was, many[pg 276] years ago, one of them who seemed to take a particular delight in so far as possible prolonging the agony of the defendant's uncertainty. when a prisoner had been arraigned for sentence the judge would wait for absolute silence, and would then with the greatest deliberation address a long harangue to the unfortunate man, characterize his crime in the severest manner, excoriate him for having committed it, name the maximum penalty which the law allowed, intimate that he was going to impose it, and then, after a long hiatus, slowly take down his sentence book, ink his pen with annoying deliberation, cough two or three times, look around the court-room and begin carefully inscribing each word upon the record before him, "i—shall—therefore—sentence—you—to—[cough, another glance around the room]—five years in state's prison."

many pathetic and also amusing incidents occur upon these occasions. there is a true story of an incident which, however, did not occur in the general sessions of new york county, where a prisoner who had been convicted was arraigned before the judge for sentence. this judge was an aged man with a great reputation for his bitter wit and sarcasm. the convict, who had been convicted of being a common gambler and who was described by the court officers as a "fly guy," appeared in a loudly checked yellow and black suit with a red necktie and a large paste diamond horseshoe pin. the judge from under his beetling eyebrows looked fiercely down upon him from the bench and remarked with intense scorn:

"i sentence you to pay a fine of fifty dollars——'

"that's all right, judge," interrupted the "fly[pg 277] guy" nonchalantly, thrusting his hand into his trousers. "got it in my pants pocket."

"——and to three years and six months in state's prison," continued his honor, with a slight twinkle in his eye. "have you got that in your pants pocket?"

recorder smyth is said to have had a habit of entering the sentences which he proposed to inflict in a book which he kept for that purpose. he also generally made use of a regular set form of expression when imposing them. a miserable little defendant who was gifted with a greater fund of originality than of common-sense, had conceived the extraordinary idea of stealing a ship's anchor belonging to a company which owned a dock in the north river. for this purpose he procured a dray, drawn by six or eight horses, and a derrick, by means of which he hoisted the anchor in question upon the dray in the dead of night and, as might have been expected, succeeded in getting only about half way down the dock with it before he was apprehended by a watchman.

naturally he had no adequate explanation to offer and promptly pleaded guilty. he was arraigned at the bar in company with several other defendants. recorder smyth, his mind still dwelling upon the words with which he had sentenced the latter, thus addressed the trembling miscreant:

"you have pleaded guilty to the crime of stealing a ship's anchor!"—then raising his voice he continued, with perfect solemnity: "the crime of stealing a ship's anchor is becoming entirely too prevalent! i sentence you to three years and a half in state's prison."

[pg 278]

in contrast with those cheerful days on manhattan, not much over a century and a half ago, when negroes were burnt to death in chains, and thieves branded in open court and then, tied bareback to the tail of a cart, whipped at every street corner from the city hall to the battery and return, the following incident may serve as a pleasant reminder of our progress in civilization:

a young irishman of excellent address, and employed in a responsible position in an express company, appropriated, at the instigation of evil companions, some of the funds intrusted to his keeping. the larceny was detected, he was arrested and admitted his guilt. meantime, some one had written to his parents in ireland who lived in a remote parish in the humblest circumstances. the two old people sold their little cottage, as well as their pig and cow, and took steerage passage from queenstown to new york. they arrived upon the day set for their son's sentence, entering the court-room as he was arraigned at the bar. a tearful recognition followed, and the prisoner, overwhelmed at this touching proof of his parents' love, begged the judge to listen to their supplication for mercy. their simple story deeply affected the court, who discharged the defendant in their keeping, under his solemn promise to return with them to ireland, there to honor and labor for them so long as they should live.

footnotes:

[41] the whipping post and the pillory were in active use until comparatively recent times. under dutch rule the former occupied a conspicuous place in front of the stadt huys on the strand. as a matter of great leniency the floggings were sometimes conducted in a room to which the public was not admitted. but the disgrace of the performance was regarded as an integral part of the punishment. the offenders were at the same time branded and frequently banished. a new york paper, dated 1712, says that one woman at the whipping post "created much amusement by her resistance." the new york gazette for may 14, 1750, states:

"tuesday last one david smith was convicted in the mayor's court of taking or stealing goods off a shop window in this city, and was sentence to be whipped at the cart's tail round this town and afterwards whipped at the pillory which sentence was accordingly executed on him." the same paper for october 2, 1752, describes the pillorying of a boy for picking pockets and the whipping of an irishman for stealing deerskins. in the olden days many a common scold was ducked into quiescence in the north river.

[42] the periods of commutation are shown by the following table:

sentence commutation sentence commutation

years years months years years months

1 .. 2 11 3 11

2 .. 4 12 4 4

3 .. 8 13 4 9

4 1 .. 14 5 2

5 1 5 15 5 7

6 1 10 20 7 8

7 2 3 25 9 9

8 2 8 30 11 10

9 3 1 35 13 11

10 3 6

[43] cf. "some aspects of the indeterminate sentence," by c.d. warner, 8 yale law journal 219. see also 9 yale law journal 17, as well as "das moderne amerikanische besserungssystem," dr. paul herr (berlin, 1907).