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.
