Only seven were hanged
The chairman took a sip from his glass, an example that was followed
by every member. The chairman spoke:
"Those in favor of the minutes as read say 'Aye'----"
"Pardon me!"
A new voice had struck into the gathering. Every member turned in
the direction of the voice. It came from the new waiter, who was
standing near the chairman.
"Before you pass these minutes and that resolution, gentlemen, I
should like to be allowed to make a proposal."
The interruption of the club's proceedings was unprecedented, and for
a moment several members wondered if the new waiter had taken leave
of his senses. But the new waiter was quite calm and gave no
indication of being otherwise than perfectly sane. One or two
members smiled patronizingly and the chairman assumed his court
attitude.
"What contribution could you make?" he asked, his massive face
wrinkling up curiously.
"I have a proposal to suggest."
Again there was a short silence, during which the members stared.
The judge's half-closed eyes were resting on the waiter. Every
member expected the man to be annihilated by a phrase from the
chairman.
"You have, of course, no _locus standi_ so far as the discussions of
this club are concerned," went on the judge, and his voice contained
that purring sound that always heralded his most severe moments. "On
the other hand, it cannot be said of the minutes that _literia
scripta manet_. Do you wish to make a plea _in forma pauperis_?"
The waiter bowed.
"I wish to put forward a proposal as _nomo sui juris_. I plead no
_lex scripta_. If you will hear my proposition, it may amuse you and
the members of the club. Believe me, I have an authority I can quote
in support of my seeming audacity."
The judge's features wrinkled more than ever. There was no doubt
that he was smiling now. He recognized a legal mind when he saw one.
"Let us hear your proposition," he said, as the members somewhat
reluctantly signified their agreement. "Proceed as if we had issued
a _writ mandamus_, but blame yourself if you find the plea is
_solvuntur risu tabulæ_."
A ripple of amusement ran round the table. It looked like a case of
a mouse sparring with a lion. The waiter remained impassive until
everybody had settled himself.
"My proposition," he began, "is quite a simple one. It is just this:
you are all interested in crime and you have drafted a resolution
declaring for the legal murder----"
"The legal punishment!" cried a lawyer, quickly.
"Put it that way if you like. You have declared for capital
punishment being retained in the legal code. I have had unique
opportunities of knowing the working of the law and the working of
the minds of those you call criminals. Does it not seem to you that
wherever a law imposes the extreme penalty it really condones murder?
What is the first thing expected of a person accused of murder? Is
it not that he or she should plead 'not guilty'? If he or she
declined to plead 'not guilty' the machinery of the law would be
nonplused until a plea was formulated--a plea that would be a ground
for argument by lawyers. And what does this demand for a plea at all
mean? It means nothing more or less than that the law believes in
the right to kill, but wants to argue about it. The arena is one in
which law and not justice is discussed, and the victory goes to the
sharpest wits. Assuming, then, that I am right in saying that the
law declares its right to kill--and all penal systems had their
origin in the idea of vengeance--cannot it logically be claimed that
a state claims this right because a state is stronger than any
individual? And if a state has the right to kill, why deny that
right to an individual, who may be more concerned in the
circumstances than the state?"
The president raised his head quickly.
"You go too fast," he said. "Society took upon itself the right to
be judge and executioner in private cases because life would become
impossible otherwise."
"Ah," said the waiter, equally quickly, "then you have admitted the
instinct of retaliation to be just. But there have been cases where
the state has held views that were wrong and unethical. In these
cases opposition to these views is permissible and right. I can
quote instances. Take the case of the Passive Resisters of Wales,
led by their clergy. Was it not through the pig-headedness of
England, and her unjust claims, that she lost the whole of the United
States? Other instances abound. They prove that resistance to
absurd laws is justified. I am going to propose something on these
lines now."
He paused and gazed round at the members, some of whom were reclining
listlessly in their chairs rather resenting the intrusion; others
were sitting, elbows on the table, listening to every word.
"I am going to propose," said the waiter, "that you, my lord, having
during your tenure on the bench sent not a few men to the scaffold,
shall be tried for administering an unjust law----"
"I am but the mouthpiece of society. It is the jury that brings in
the verdict!" cried the judge, sitting up quickly in his chair.
"But you have been capable of influencing a jury while you explained
the law. It is in your power to direct a jury----"
"It is a monstrous idea!" cried a lawyer seated down the table. "You
forget yourself, waiter!"
"I do not forget myself. I do not propose an absurdity. I wish to
prove to you that capital punishment is a savage relic retained by
legislatures that are either vicious or are selfishly indolent or
worse----"
"That is not true," interrupted one of the politicians. "The penal
codes of England and America are the mildest on earth and have been
formulated by sympathetic men----"
"It is curious," said the waiter, quietly, "that you should use the
very words of Judge Fielding, who put up the same defense to the
grand jury of Middlesex at a time when people were burned for coining
and had their ears nailed to the pillory for minor offenses. I'll
tell you why the judgment of death has never been abolished by
governments. It is because there is no party capital in the
question. The suggestion to wipe out judgment of death has been
before the British legislature in the years 1868, 1872, 1877, 1881,
and 1886, but each time it has been defeated. The argument has
always been that to abolish it would mean that murders would
increase. Yet it has been proved that death is no deterrent and the
abolition of death no incentive. Let me give you a few facts on this
score."
He pulled a slip of paper from his pocket.
"The death penalty has been abolished in Holland since 1870; in
Switzerland since 1874; in Rumania since 1864. It has been either
abolished or abrogated in Sweden, Norway, Denmark, Portugal, Austria,
Belgium, and in Italy except for certain reservations. There are
eight states in America where it is not admitted; in thirty-three
states a life sentence in prison is the alternative. And in the
remaining states where death is the penalty of murder there are more
murders committed than in the others."
"Let us keep to England," said a lawyer. "We have only four crimes
that are punishable with death."
"I am aware of that," replied the waiter. "The four are: first,
murder; second, treason; third, setting fire to His Majesty's
dockyards; and fourth, piracy with violence. In Scotland the
throwing of vitriol can still be a capital crime. But it is not so
long ago that there were over two hundred acts for which death was
the penalty. Among these, barely a hundred years ago, was the
uprooting of a shrub in a public park; being in the company of
gypsies; impersonating a pensioner of Greenwich; being seen in a mask
in a public highway; damaging a rabbit warren. It was the
squirearchy that made these laws and inflicted the punishment. Are
you aware that in 1810 the Chief Justice of England opposed the
abolition of the death penalty for stealing a few shillings' worth of
goods from a shop? Are you aware that the then Archbishop of
Canterbury and half a dozen prelates sided with the Chief Justice?
In May, 1833, a boy of nine years of age was sentenced to death by
Justice Bosanquet and was hanged for breaking into a house and
stealing twopenny worth of goods. In the year 1840 a boy who, either
in a fit of insanity or in a passion for notoriety, fired a tiny
pistol in the direction of Queen Victoria was sentenced to be hanged,
drawn, and quartered.
"You ask me to keep to England. Listen while I keep to it. Have you
ever heard of the judgment of _peine forte et dure_? Prisoners were
taken to a dungeon, laid on their backs, stripped save for a loin
cloth, and set upon their bodies was a weight of iron just greater
than they could bear. They were given three morsels of coarse bread
on the first day, three draughts of stagnant water from the pool
nearest the prison door on the second day, and so on alternately from
day to day until they died. The sentence of traitors was that they
should be disemboweled. The bishops were witch-burners, the common
clergy took bribes to get prisoners free. It was Bonner, Bishop of
London, Chaplain to the King, who pressed a charge of heresy against
a boy of fifteen years and had him burned at Smithfield. During the
reign of one king--Henry Eighth--no fewer than seventy thousand men,
women, and children went to the scaffold. In every village there
were whipping-posts and stocks. In 1801 a boy of twelve was hanged
for the theft of a spoon."
The waiter stopped talking for a moment, for the judge's hand was
raised as if the latter desired to speak. But his lordship did not
open his lips, though his gaze was fastened on the waiter's features
in a strained way.
"It was not until the year 1837 that a prisoner could have a lawyer
to speak for him. It was not until 1870 that the atrocity of being
hanged, drawn, and quartered was withdrawn in the case of a convicted
traitor. It was not until 1898 that any accused person was permitted
to give evidence on his or her own behalf----"
"If you intend to charge us with all the faults and disorders of
previous administrations," sneered the judge, "we can plead the
statute of limitations with equanimity."
"You have enough to answer for, believe me, without my charging you
with all I have mentioned. I have but adopted an old legal method of
outlining the case by presenting the growth from which the charge
emerges. What was the reason for all those outrages by the state?
It was the assumption, still held, that the state had the sole right
of punishment. Did the rack or the boot have the effect of making
men penitent? Did drowning stop belief in spirits and ghosts? Did
the Spanish Inquisition make men righteous? If execution is a
deterrent, why does not murder cease? If the penal code is a
reformative agency, why are not all prisoners reformed?"
The judge shrugged his shoulders and cast a glance round the table.
To his astonishment he saw that most of the club members were no
longer taking any interest in the argument. Could they be falling
asleep? Heads had fallen aslant shoulders, a few hands were propped
under cheeks for support. A feeling of uneasiness swept over him.
He was used to receiving the utmost respect. In his own court he
would have dealt severely with such contempt.
The secretary, his bundle of papers and minute-book before him, was
still awake, but even he was showing signs of weariness and lassitude.
The judge turned to the waiter anxiously.
"Shall not we postpone this matter----?"
"With due respect, I think not."
"But my ruling is that it is absurd and _ultra vires_----"
"On the contrary, it is quite in order."
The judge was now becoming thoroughly alarmed. There was something