TURNING THE TABLES ON THE EXECUTIONERS

AN ESSAY

During my break from writing this week, I have had time to read some interesting history. I am always searching for historical material to flesh out my satires and inspire essays that link modern-day problems to ancient precedents. I found a good one in the story of Simon Fraser, 11th Lord Lovat (1667-1747), a Scottish Baron who had the honor to be the last man beheaded at London's Tower Hill.

I have studied capital punishment at length. I think it measures a society's moral progress. You can tell how advanced--or barbaric--a society is by investigating three things: (1) Does its government kill its own citizens "by law?"; (2) If it does, how does it "officially kill" them? and (3) If it does, how many does it kill every year? For over a year now, I have cataloged which countries (and US States) allow capital punishment. I have also investigated which methods they use to execute people. It is a grim business, but I think it reveals a lot about human societies and their claims to "civilization." Capital punishment, after all, is the ultimate government action vis-a-vis the individual. Government can take many things from you. It can take all your property, your dignity, your self-respect, your money, your liberty and even your children. But it can't take anything more than your life.

Yet it impossible to talk about capital punishment without talking about history. Throughout the ages, capital punishment and brute political power have gone hand in hand. Political power uses law to advance its own purposes, not in order to vindicate abstract principles like justice or right. Victorious governments execute rebels and others who commit "treason" against them. In this sense, capital punishment masquerades as a "legal sanction," when in fact it is merely an exercise in raw, arbitrary political power. The strong man kills the weak one who opposes the "establishment." The strong man deploys judges to cover up the killing with official-sounding legal gobbledygook.

But law doesn't fool me. Law is supposed to speak against killing our neighbors, not kill them itself. I have profound difficulty believing legal rhetoric that justifies capital punishment when the same legal rhetoric condemns common, intentional homicide. If intentional homicide is "wrong" when a citizen commits it, how is it different when a State officer does the same to a citizen? There is a glaring inconsistency here. And this inconsistency persists because governments have always claimed a power to kill their own citizens. In my view, blind tradition is no reason to keep foolishness alive in our time.

In all my studies about capital punishment, I routinely run across ironic tales that expose these philosophical inconsistencies. Simon Fraser's story is a perfect example. Fraser was sentenced to die because he conspired with Jacobite rebels during their attempt to overthrow King George II in the 1740s. He "had to die" because he threatened to dislodge those with political power. He lost, so he "had to die." If he had won, he probably would have executed the losers. It had nothing to do with principle; it was about power.

In any event, Fraser went to Tower Hill. Huge crowds gathered to watch his head roll off the block. The government built wooden scaffolds to accommodate the overflow crowd. They wanted to see this "traitor" die. But before the headsman struck, a scaffold collapsed, killing 20 bloodthirsty spectators.

I laughed when I learned this. I found it ironic that men and women died while waiting to watch an execution. They paid for their perverse desire to watch the government ritually kill someone. Something turned the tables on them. They thought the law supported them against the "traitor," but they died, too. Victorious political power might have killed Lord Fraser, but some other power killed the spectators who prepared to celebrate his death.

In my view, this shows that executions do not prove that the government is "right" about anything, even if the condemned person is guilty. No matter what legal arguments the King's judges and prosecutors made to justify Lord Fraser's death in law, they could not prevent "innocent" spectators from dying, too. In short, government had power to order Lord Fraser to die, but it had no power to prevent the spectators from dying. Thus, the government's own claim to "power over life and death" appeared pitifully limited.

In principle, then, government is not "naturally right" when it kills its own citizens. It has simply arrogated the power to execute people "by law" because power creates law. There is nothing in nature that entitles government to put citizens to death. All the procedures, trials, rules and rhetoric underlying modern capital punishment are mere inventions, not a priori truths.

There is not much I can do to dislodge power. I just like to think that government should aspire to something better than the crude, human urge for revenge against "trespassers." I have written before than men will always kill each other. Men are emotional animals. They have individual weaknesses, passions, idiosyncrasies and even delusions. Yet government is supposed to be better than the individual men who compose it. Just because men constitute government does not mean that government must mirror all men's weaknesses. To the contrary, government has a unique power to stand on principle and dignity, even when individual men cannot. To my mind, there is no substance to the argument that "government can kill because men can kill." Rather, I believe that government has a unique opportunity to insist on behavior that transcends human weakness. Principles might not work for individual men, but governments can demand them.

Law should mean something more than mere power. Lord Fraser's story reveals power at work through law. Yet his story also reveals that neither law nor power can control everything, despite their claims to the contrary. While power might have ordained Lord Fraser's death, it did not ordain the spectators' deaths. No legal solemnity or argument killed the spectators. Law may have justified Lord Fraser's death with florid rhetoric and even legal citations. But its pretentious reasoning could do nothing to justify--or prevent--the spectators' deaths.

In short, power has limits. But power acts as if does not. I love stories that reveal those limits, chastising those who adhere to power. The spectators at Lord Fraser's execution confidently took their seats on the scaffold to behold "their" power at work on a man "their" law had condemned. They felt justified in exercising "their" power. But they wound up dying, too, even though the "law was on their side." They didn't "deserve to die;" but apparently--to quote The Unforgiven--"deserve's got nothing to do with it."

What sweet, maddening irony. The history of power--and capital punishment--abounds with stories like this. In the end, you get the impression that no one is right, no matter who dies and who invokes law to justify death.

A TRAITOR'S DEATH

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 http://www.luminarium.org/encyclopedia/clarence.htm.

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.

IS IT WORSE TO BE DISLOYAL OR VIOLENT?

AN ESSAY

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.” Dictionary.com 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.” Dictionary.com 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.