Once again, my friend Adam Sulkowski asked a question that forced me to stretch deep into my memory for a quote. Adam asked how one is to judge the morality of historical figures. Do we condone their brutality "'cause they rolled that way" or do we apply modern standards to their actions.
Well, anyway, I was reminded of something I wrote for TFT back in 2005.
Lawyers with extra time on their hands are often advised to keep their teeth sharp by researching the law. Such research often reveals the ebbs and flows in the development of the law, conferring upon such diligent students a full appreciation of its niceties. On the other hand, a disadvantage of such a course of action is that, tired by hours of examining legal texts, lawyers begin to see everything in terms of the law.
In such circumstances myself, I often find it an amusing distraction to apply legal principles to quotidian activities. Even more amusing is applying legal principles and techniques to historical and literary sources. And where better to begin that the earliest recorded murder trial.
The facts of the case are simple: Cain and Abel were brothers; Cain was an agriculturalist and Abel a herdsman. At a certain time each of them brought an offering onto the Lord; Cain’s offering consisted of the fruits of the ground and Abel’s offering of the firstlings of his flock and the fat thereof. For some unexplained reason, the Lord accepted the offering of Abel and turned from the offering of Cain. And Cain was very wroth and his countenance fell, so to speak. His anger appears to have turned him against his brother, and although the Lord warned him against yielding to such base instincts, he bided his time and “it came to pass when they were in the field that Cain rose up against Abel his brother and slew him.” This is the record of the case in all its simplicity.
The only witness to the crime was the blood of the murdered Abel, which, according to the record, had a voice which cried out for vengeance and was heard by God, who appeared for the purposes of conducting the investigation and the trial.
Now, the only known facts at the time were than Cain and Abel were seen going out to the field together and that Cain returned alone and without any trace of his brother save for the blood stains on the field. Naturally, suspicion fell on Cain. The Lord summoned Cain to appear before him and immediately subjected him to one of those short, sharp cross-examination questions which win the admiration of people: “Where is thy brother Abel?” Unlike Adam, who confessed immediately to the charge of eating from the forbidden tree, Abel averted the question with a “I know not. Am I my brother’s keeper?” Such a defiant and heartless answer appears to have strengthened the suspicion against him. To make matters worse, Cain slipped into sarcasm, adding a “Is it my duty to look after him as he looks after his sheep?” For reasons untold (my hunch is overconfidence), Cain made no further attempt to defend himself – no doubt relying on the fact that no other witnesses could be produced against him.
However, Cain’s confidence was misplaced. The next question put to him blew him away: “What hast thou done? The voice of thy brother’s blood crieth onto me from the ground.” Cain had forgotten that his brother’s blood was the star witness against him. And the voice was enough evidence enough to convict.
Cain’s fear of being put to death must no doubt been assuaged when the sentence against him was pronounced in these words: “And now art thou cursed from the earth, which has opened her mouth to receive thy brother’s blood from thy hand.” Thus Cain went from the presence of the Lord and dwelt in the land of Nod, east of Eden. However, the punishment of exile is interesting as, at the time the statute governing homicide was Genesis IX, 6: “Whoso sheddeth a man’s blood, by man should be his blood shed.” No grounds for mitigation can be found, nor any reason deduced as to why Cain was exempted from capital punishment.
Any lawyer worth his salt can tell you Cain’s conviction would be overturned on appeal for the simple ground that the Almighty had been judge, jury and executioner all rolled into one. In other words, the trial would fail the tests of Natural Justice. One needn’t even dwell on the reality of talking blood.
However amusing it may be to spend one’s time in such frivolities, research of the law also makes clear to students of it that things accepted in times past would not turn the colour of modern legal litmus paper. For example, the U.S. state of Georgia had deemed it an offence in 1909 for any person to be “guilty of open lewdness, or any notorious act of public indecency, tending to debauch the moral.” An interesting case was put before the Supreme Court of Georgia when a criminal court convicted two men for taking “a bull to a cow in heat in a pasture adjoining a highway on which there was a woman and several children” (Redd v. State, 67 S.E. 709). On appeal, it was argued on behalf of the convicted men that, according to the law, “the patriarch Jacob standing at the public watering place and holding the striped rods before Laban’s bulls, rams, and he-goats when they leaped, in order that the young be marked with stripes, would have been guilty of public indecency.” A clever argument, but one which did not find favor in the court of one Powell, J. The court observed: “Perhaps so. But, as able counsel for the state has replied, it will not do to measure modern morals according to the standards of ancient and biblical times. King Soloman with his thousand wives would not be tolerated in Georgia; and King David, he the man after God’s own heart, could hardly justify his whole life according to the provisions of the Penal Code of this state.” I only wish some of our more fervent clerics can take notice of the implication of such words.
Strangely, I am not alone in going out of my way to distract myself. In Europe, the legal profession has seen to it that Victorian literature be put through legal analysis. One of the most hotly debated literary decisions is the trial scene in William Shakespeare’s The Merchant of Venice. Here, the usurer Shylock sued for breach of agreement. However, according to the terms of the contract, Shylock – a foreigner in Venice – was due damages in the form of one pound of the Venetian citizen Antonio’s flesh. The case was presided over by Portia, a young Magistrate but one who was, according to Shylock, “much more elder . . . than thy looks.” During the trial, the contract, its terms as well the factum of its breach were admitted. As the contract stipulated that the flesh would be extracted from a place “Nearest his heart,” Antonio was ordered to bare his breast. But before Shylock could become accomplice to what would most certainly have been judicially sponsored murder, Portia stepped in to remind him of an archaic Venetian statute prohibiting grievous bodily harm. According to that law, anyone guilty of shedding “One drop of Christian blood” was liable to have all his lands and goods confiscated by the state. And before Shylock could recover from the shock of this revelation, Portia informed him further than: “The law hath another hold on you/ It is enacted in the laws of Venice/ If it be proved against any alien/ That by direct or indirect attempts/ He seek the life of any citizen/ The party against which he doth contrive/ Shall seize one half his goods; the other half/ Comes to the privy coffer of the state/ And the offender’s life lies in the mercy/ Of the duke only . . .” Shylock had succeeded only in snatching defeat from the jaws of victory.
The great English constitutional jurist, O. Hood Philips, compiled before his death analysis upon legal analysis of this case from various sources throughout Europe and the United States. A former member of the faculty of law at the University of Lyon, Paul Huvelin, suggested that Portia’s decision was correct in law and also fundamentally equitable and humane. Other disagree, stating that Shylock’s final condemnation was arbitrary and without legal character. For the latter critics, the sentence seems to be motivated by vengeance rather than justice, and Shylock appears to take on a symbolic character, falling like some legal Prometheus. Despite Shakespeare’s lack of legal knowledge, the trial scene from The Merchant of Venice manages to capture the constant tension between the application of the law and dispensation of justice, and nowhere more eloquently than in the voices of Bassanio and Portia:
Bass. And I beseech you,
Wrest once the law to your authority:
To do a great right, do a little wrong . . .
Por. It must not be. There is no power in Venice
Can alter a decree established:
‘Twill be recorded as a precedent,
And many an error by the same example
Will rush into the state. It cannot be.