Wednesday, October 15, 2008



At common law, crime came in three categories: misdemeanors, felonies and treasons. Treasons were the worst. Until the mid-19th Century, the penalty for both felony and treason was death. But traitors died worse deaths than felons. That is how the law distinguished between the two.

I have always been fascinated by punishment. My fascination focuses not so much on the morbid details surrounding State-inflicted pain, but rather how the law chooses to separate “bad acts” from “really bad acts.” “Bad,” of course, reflects a value judgment. When the law prescribes a penalty for an act, it inscribes its own values into the act. It brands the act with its own judgment. It is completely irrelevant whether a particular act is “bad” from a metaphysical perspective; it only matters whether the law has deemed the act “bad.”

In a modern example, the New York Penal Law defines “Manslaughter in the Second Degree” as a “Class C Felony,” while it defines “Manslaughter in the First Degree” as a “Class B Felony.” NYPL §§125.15; 125.20. Class B felonies carry more prison time than Class C felonies. “Manslaughter in the First Degree” is worse than “Manslaughter in the Second Degree” because the defendant “intends to cause the death of another person.” NYPL §§ 125.20(1); 125.20(2). By contrast, a person commits “Manslaughter in the Second Degree” when he only “recklessly causes the death of another person.” NYPL § 125.15(1). The law judges: It is worse to intend to kill someone than merely to kill someone through recklessness. The result is identical; yet the law distinguishes morally according to the manner in which the result occurs. This reflects nothing more than a value appraisal.

Laws have drawn value judgments for centuries. As the example above shows, it is easy to see what values motivate laws based upon the punishments they inflict for certain behavior. What does that, in turn, say about society’s values? Obviously the law speaks for society. Through law, society hopes to enshrine its dominant values. When it punishes, it says: “We think this conduct is bad.” When it punishes worse, it says: “We think this conduct is worse.”

Today, many people would agree that there is a significant moral difference between consciously intending to end another person’s life and ending another person’s life through recklessness. Both lead to a blameworthy result, but the intentional killer strikes us as a “worse person” than the reckless one. So the law punishes him more severely. It is oddly intuitive. Historically, however, the analysis becomes murkier. What values impressed our ancestors? What warranted harsher penalties, say, in the 17th Century? After all, our legal system derives from the English common law. Perhaps we can learn about our own laws by understanding their English roots.

All felons died at common law. A thief went to the gallows. So did a common murderer or rapist. Even “sodomites”–ie, men who consensually had sex with other men—were hanged. As recently as 1790, English authorities hanged shoplifters. Death was virtually a universal penalty for felonies. But if all felons died, how did the common law distinguish between “bad acts” and “really bad acts?” Sometimes the Court would order a murderer hanged, then dissected for medical examination. At other times, the Court would order a pirate hanged, then publicly displayed in a steel cage for all to see (“the gibbet”). Even early American courts publicly displayed dead criminals.

But the common law made a larger distinction. Namely, it technically distinguished between “mere felonies” and treasons. Treason deserved especially harsh punishment. As we have seen, increasing penalties means the law expresses its value system. What made treason worse than simple murder? Isn’t murder the worst thing a person can do to another? Not according to common law. To understand why, it is essential to know what “treason” actually means.

Everyone has an idea what “treason” means. It means “betrayal.” True, the dictionary tells us that “treason” means “the betrayal of trust or confidence; treachery.” v. 1.1, Treason definition, Meaning 3. And “treason” also has a political component: “the offense of acting to overthrow one’s government or to harm or kill its sovereign;” or “a violation of allegiance to one’s sovereign or one’s state.” Id., at Meanings 2 and 3. These definitions tell us that a person does not have to commit violence to be a traitor. In fact, he must simply be “disloyal.” He must merely “violate allegiance” to his State.

Does this explain why the English common law singled out traitors as the ultimate criminals? Certainly every government has an interest in rooting out those who seek to overthrow it. And it is understandable that a government would wish to preserve stability by deterring attempts to incite revolts. To that end, the English common law defined “high treason” to prohibit: actually killing the King; attempting to kill or harm the King; harming the King; killing the King’s wife; killing the King’s eldest son; or conspiring in any way to kill the King, even if no one is harmed. Further, “high treason” included “levying War against the King while one of the King’s subjects” or “giving aid and comfort to the King’s enemies.” All these behaviors undermine the State and it is conceivable why the State would want to ban them in the strongest possible terms. Disloyalty in these circumstances would throw the country into turmoil, and no one would want that.

But the common law defined “treason” even more broadly than the dictionary. Under various statutes, counterfeiting became treason. So did cutting down trees in the King’s orchard or hunting game on the King’s preserve. It was high treason to have sex with the King’s wife, or the King’s eldest son’s wife, or the King’s eldest unmarried daughter. It was high treason to be “a Roman Catholic priest in England” under Elizabeth I. These “legal definitions” stretch well beyond the core “disloyalty” that seems to characterize “treason” at first glance. At common law, each one of these behaviors warranted the ultimate penalty: Hanging, drawing and quartering for men; and burning at the stake for women.

To truly comprehend how much the common law abhorred high treason, it is essential to know how it punished the offense. Again, we gain insights into a society’s values when we examine how it punishes certain behavior. Upon conviction for high treason, the condemned would be “drawn naked to the place of execution on a hurdle,” namely a wooden plank that prevented him from smashing his head on the cobblestones as the horse dragged him through the streets. Then, the executioner would hang him for several minutes, but cut him down while he was still alive. If the prisoner had lost consciousness, the executioner would splash his face with water to rouse him. Then, the executioner would lay the prisoner on a wooden block and cut off his penis and testicles. He would take the severed organs and burn them in a ritual brazier before the prisoner’s eyes. Next, the executioner would make a cut in the prisoner’s belly and slowly rip out his intestines with a hook-like device before burning them in the brazier. After completely disemboweling the prisoner, the executioner would behead the victim, then cut off his arms and legs. Later, the head and limbs would be put on display as a brutal warning to all would-be traitors. In some cases, the executioner would hold up the victim’s heart to the crowd, declaring: “This is the heart of a traitor.”

One may rightly question how human beings could do such things to their fellow men for nothing more than counterfeiting a few coins. But the common law routinely inflicted this grisly punishment on hundreds of people until the 19th Century. Most significantly, the prisoners were not all murderers. They simply violated the “high treason statutes.” They were not necessarily violent men; some simply practiced the Catholic faith or killed one of the King’s stags. They crossed the King, and they paid dearly for it.

What does this say about values at common law? It appears that “disloyalty to the King” was a far worse transgression than mere violence toward another person. Interestingly, the word “treason” itself provides some insights. “Treason” derives from an Old French word “traison,” which in turn derives from the familiar Latin “traditio,” meaning “a handing over.” v.1.1 “Treason” etymology. In this sense, “treason” means to “hand one’s King over to his enemies.” Obviously the common law value system could not tolerate such conduct. Disloyalty, then, was certainly worse than mere violence. Another crime reinforced these values: “Petty treason.” At common law, a servant committed petty treason by killing his master. And women committed petty treason by killing their husbands. By betraying their legal obligations to their superiors, the rebellious servant and the unruly wife warranted the second-highest penalty in England. Here again, disloyalty against one’s superior was worse than violence alone. The law made the penalties more severe for “unnaturally revolting” against one’s betters.

All this may seem impossibly remote to our modern eyes. How could a State inflict such torments on people simply for cutting down a tree? It is easy to say that, but our society, too, castigates disloyalty in many ways. In social discourse, men and women abhor betrayal and “cheating.” In popular understanding, “backstabbing” is worse than direct violence. We detest disloyalty because disloyal people ignore social convention, whether in employment, relationships or government. In religion, we revile traitors like Judas for betraying trust. In literature, Dante reserved Hell’s lowest level for traitors. Although we do not draw and quarter traitors anymore, our values certainly espouse a special hatred for them. And not long ago, we did draw and quarter them.

What makes disloyalty so bad? Is there something more significant at work here? In the usual case, one person owes another “duties of loyalty” because he is inferior to the other person. In employment, the employee must be loyal to his employer during work hours, and sometimes even beyond that. Directors on corporate boards must be loyal to their shareholders, and soldiers must be loyal to their officers. Every citizen must be loyal to the State—our modern sovereign. Students must be loyal to their teachers, and servants must be loyal to their masters. Loyalty is a characteristic of unequal social discourse; a superior party has the right to demand loyalty from his subject.

Why, then, has the law historically made penalties worse for disloyalty? I would venture that the law abhors disloyalty because the law serves the powerful. The powerful want to maintain their rights over their subjects, and that means inflicting worse penalties on disloyalty than on any other transgression. We are not as far removed from the common law as we believe. Our law—and the social constructs it supports—both vindicate the values of the powerful. In our world, there are leaders and followers, employers and employees, sovereigns and subjects. When a follower strays from his path, he can reckon with worse treatment than a casual miscreant. It is no accident that our own Constitution defines only one crime: Treason. See U.S. Const. Art. III § 3. And it is no accident why our federal criminal code makes treason a capital offense, even if no one dies.

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