Saturday, December 13, 2008


Several weeks ago, I wrote about the distinction in English law between murder and treason. Murderers and traitors both forfeited their lives under law, but for different reasons. Traitors received the ultimate penalty--to be hanged, drawn and quartered--while mere murderers simply hanged. Murderers were violent toward their fellow man; but traitors did something far worse: They betrayed loyalties. In the law's view, disloyalty was worse than violence, even if disloyalty did not lead to anyone's death. That explained the differential treatment for murderers and traitors. And it revealed the common law's nod to dominant social values. Put another way, the law was as much concerned with maintaining established systems of dominance and subservience as it was with deterring behavior that physically harmed other people.

Interestingly, Shakespeare thought that murder and treason occupied the same ground. "Treason and murder ever kept together,/ As two yoke-devils sworn to either's purpose, / Working so grossly in a natural cause, / That admiration did not whoop at them." King Henry V, Act II sc. ii. Although traitors typically murder--or attempt to murder--their sovereign, the historical record reveals that conviction for treason required far less than trying to kill the King. I noted in my previous essay that English statutes constantly expanded the reach of "high treason," so that even mere coin-counterfeiters could be condemned as traitors "for offenses against the King's currency." The same horrible penalty applied whether the traitor smelted a coin or stabbed the King.

And what gruesome penalties! Today I read about an English nobleman named "George Plantagenet, Duke of Clarence" (1449-1478) who was "condemned to the Tower of London for compassing the death of the King by necromancy." He was slated for beheading, but before the sentence could be carried out, the King's henchmen "murdered him by drowning him in a butt of Malmsey wine." See Article at

I have read about many executions. But I had never heard about forced drowning in wine.

I often criticize the death penalty because I think it reveals the antiquated moral state of our civilization. We show our colors as a civilization when we stoop to physical barbarism toward our fellow men, no matter how contemptible they are. Although men will always be beasts to one another, governments aspire to something higher. Governments profess to maintain dignity, reason, justice and constitutional ideals. Thus, when government kills, it shows its own evolutionary handicaps. Worse, it descends into outright hypocrisy. It is no excuse to say: "Well, these are the worst people in our society. They broke the law and we should treat them the same way they treated their victims." But government has an obligation to rise above brute revenge. In fact, when government stoops to physical barbarism, it violates us all. Jesus' words come to mind: "Whatver you do for the least of these my brothers, you do it to me." Matthew 25:40. In other words, the mere fact that a criminal is "contemptible" does not entitle us as a society to brutalize him in a manner that we would condemn in other circumstances.

Capital punishment presents extremely difficult social and philosophical questions. Without going into great detail today, I believe that--in America, at least--the death penalty is heir to a barbaric past. I do not believe that government has an obligation to use brutal violence against criminals. Government has an obligation to obey rational principles, not to yield to bloodthirsty urges for revenge. Nor do I think that government should so sanguinely invoke "tradition" to justify the death penalty. After all, that "tradition" once drowned people in wine, tore their intestines from their bellies while they were still alive and publicly displayed their mutilated corpses until the vultures picked them clean. That is not a tradition of which 21st Century governments should be proud. If anything, a government dedicated to advancing ideals and dignity should try its best to disavow such a sordid legacy.

Death penalty defenders say that contemporary execution methods "are nothing like" the barbaric practices of old. But that argument misses the mark. The question is more abstract. It does not matter how government kills; it matters that government kills. And it matters that government-sponsored killing is heir to a gruesome tradition. If principle carries any weight with governments, it should command them to abandon captial punishment on "evolutionary" grounds. In short, we should be ashamed to continue a tradition that once empowered State officials to lash living people to wheels and smash their joints with mallets. No matter how much the methods have changed over the centuries, one fact remains: Government kills. Individual citizens may want bloody revenge, but government has an obligation to rise above individual outrage. Government must follow reason, not passion.

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