A Covenant with Death (27 page)

“We have no precedents. We have only our own precarious humanity. Humbly but without hesitation—because a human life is at stake—we must do what courts should never do: we must make the law. Aristotle wrote wisely, ‘It is best that the laws be so constructed as to leave as little as possible to the decision of those who judge.' When they are not so constructed, those who judge fall under an awful responsibility. The law is light, says the Bible; and in a darkness we must make our own light.”

And I paused, and drank.

“The covenant by which man creates a community is an agreement to forgo the perilous gratifications of animal existence for the more permanent advantages of human fellowship; and the law is a detailed statement of that covenant. In a state of nature man is ruled by a lonely violence, a violence not merely characteristic but essential to survival, not merely an attribute but a right. And because survival is the ultimate value of the lonely beast, the right to survive implies all other rights: the right to steal, the right to rape, the right to kill. But in accepting the company of his fellows, man yields a measure of that violence in the name of a general tranquility; and society assures him that he has not disarmed himself—that his survival, once important to him alone, has become the care of all. That is the covenant, and it was born with the most primitive social unit of the earliest men. In time that unit acquired complexity, and so did the covenant, and so did the law; but at the heart of all three, however deeply buried, lies one value: survival.

“License ends where civilization begins; the one is the price of the other. Man yields up his right to steal, though certain modes of self-enrichment, hallowed by custom or expediency, are sanctioned. He yields up the right to rape, often to the extent of assigning his goods, services, and affections irrevocably and in perpetuity to the objects and products of his procreative urges. He yields up his right to kill except upon the express command, usually justified as self-defense, of the society he has created. In return for these abdications he is offered certain sureties. His goods are not subject to arbitrary confiscation. His family will not be sundered. He will not be assassinated. Those assurances would be vain without another: when there is error, redress will not be denied. Under the slow but benignant processes of essentially just and disinterested law, the confiscated goods may be restored, the family reunited, the dead man—ah, no. We are brought up short: the covenant has its limitations, and of these the most brutal is death, because the promise of the covenant is survival.…

“So when society kills arbitrarily, with or without due process, we call it tyranny; and it is as much tyranny in our time as it was in the time of the Pharaohs. When the individual does so, we call it anarchy, and it is as much anarchy in our time as it was in the time of Cain. But tyranny is far the more common, because in creating society the covenant confers upon that society vast powers, even as it restricts those of the individual. In a stable society anarchy, though often conspicuous, tends to be self-limiting; tyranny, though often inconspicuous, tends to be self-aggravating. The famous dictum that ‘power tends to corrupt, and absolute power corrupts absolutely' applies to both states and men: but the state begins with far more power. That differences in degree become differences in kind no one denies, and an important purpose of the law is to determine and explicate those differences: so a merger is not necessarily a monopoly, nor political opposition treason, nor killing murder. The question is almost always one of power and its uses, and the conclusion seems inescapable that a far greater threat to the covenant lies in tyranny than in anarchy. The political and legal struggles of the past have been a shifting battle between the two, and the significant outcome of those struggles has been the growth of popular government under law, of which the main concern is to compose differences—to resist tyranny without surrendering to anarchy. Nowhere has that concern been more nobly cherished than in this country. We more than others, relatively unoppressed by nature and committed in writing to life, liberty, and the pursuit of happiness, have succeeded in humanizing the state; it is that success, and not some administrative convenience, which accounts for the most significant of all legal fictions: the fiction that the state is a person, and may be petitioned, sued, openly criticized and brought to public account for its actions. We have acknowledged redress of grievances to be a natural right and an essential article of the covenant.

“But the dead have no redress. Certain abrogations of the convenant are final and absolute, and take us beyond the possibility of composing differences. So the one right that may not be waived by the individual or rescinded by society is the right to life. That right is the root and heart of the covenant: when it is denied a man by society, with or without reason, that man's obligations are discharged and the covenant is dissolved. That denial is fatal to the covenant itself. If carried to an extreme that denial would be fatal to the survival of humanity, and we are justified in considering the extreme: the covenant is our answer to the question. ‘What if everyone did it?' That the right to life may not be waived or ignored by the individual is implied by laws making felonies of attempted suicide and of murder. That society's rescission of the right, even by due process, is not taken lightly—is, indeed, a source of awe, horror, and mystery—is better illustrated in less sophisticated societies than our own: we permit the condemned a hearty meal and a last speech, but among less inhibited peoples he was often granted twenty-four hours, or even longer, of absolute sensual license, of the free play of his primitive vitality, during which time nothing—save, again, life itself—was sacred or taboo to him. That we are now less awed, horrified, or mystified by legal executions is another difference in degree; we must take care that it does not become a difference in kind.

“We retain our horror of murder, that final and absolute abrogation of the covenant, though we tend to forget that in the deepest eschatological sense murder is monstrous even when committed pursuant to due process. The Sixth Commandment is not hedged about by qualifying clauses. But when survival is the paramount value, the value upon which the covenant lives, self-defense, by the man or by the society, becomes a virtue. And survival is still the paramount value, the root, however camouflaged by centuries of social foliage. When the state executes a felon it offers the justification not of revenge but of deterrence, or self-defense; though in the swell of passions that attends great transgressions, motives are rarely so simple. How necessary and how effective such executions may be are not, or not immediately, the judgments we are here asked to make. Their legality and their necessity are presumed by past and present law, to which we must here submit.”

And I paused again, and drank.

“But past and present law presume that self-defense is an inherent right also of the individual. ‘No man,' wrote Thomas Hobbes, ‘is supposed, at the making of a commonwealth, to have abandoned the defense of his life and limbs, when the law cannot arrive time enough to his assistance.' This commonwealth has not long been a state; its traditions are rooted in the more violent and primitive mores of the frontier, and only a short time ago self-defense was not a legal concept but a daily necessity. Now we are asked to decide whether an innocent and inoffensive man may exercise the right of self-defense against society itself, when that society has been not arbitrary but only misguided, not malicious but only mistaken. The state has maintained that some error is inevitable in human affairs, and that the law has allowed for error as far as it may without abdicating its functions; but in view of the finality of death, that argument loses force and becomes highly legalistic. The state has also attempted to fix responsibility for the original miscarriage of justice, implying strongly that defendant's conviction and sentence were the will of society as a whole. The argument would be rejected by Blackstone, who wrote, ‘It is better that ten guilty persons escape than that one innocent suffer'; and in this Court's view of the nature of law, the argument is a justification for tyranny. Gibbon, too, would reject the argument; he saw the race of men as petty and foolish, but his dour judgments were intermittently brightened by flashes of pity and fellowship, and in one of those flashes he wrote, ‘Whenever the offense inspires less horror than the punishment, the rigor of penal law is obliged to give way to the common feelings of mankind.' It may be argued here that horrifying as the offense was, the punishment would be far more horrifying; the one was a justified act of despair and instinct, the other would be a cold and remorseless revenge by a society that may with some logic be held to share the guilt for the crime. The state has also argued that the purpose of capital punishment is the protection of the innocent; but who protected the innocent defendant? Simple equity would seem to require us to sanction murder by an individual for the same purpose; if it is an obligation of the state to assure the survival of the innocent, surely it is also an obligation of the individual. The state's arguments turn upon themselves: if self-defense justifies killing, then defendant was justified; if deterrence is the state's purpose, surely it was—and how much more immediately and effectively—defendant's; whatever justification the state proposes, defendant may claim as his own.…

“If an innocent man is, for whatever reason, brought to the last extremity by society; if, as we maintain, his historic obligations under the covenant are then discharged; if, as we maintain, survival is the instinct that informs man, society, and the covenant; then it seems impossible not to conclude that he has a perfect and inalienable right to preserve his life at whatever cost—more, that he has an absolute duty to do so under the articles of the covenant itself.… At some times and in some places such self-defense has been called heroism, and when unsuccessful, martyrdom. The renunciation of it has often been considered the highest flight of man's spirit, accessible only to saints—which indicates forcefully and clearly the supreme value placed upon self-preservation by ordinary mortals. Defendant is an ordinary mortal, and must be judged by the standards of other ordinary mortals. Threatened with arbitrary extinction, he exercised his human right and fulfilled his human obligation; he reminded us that there was man before there were men; in defending himself he defended us all, and the covenant by which we survive.

“It is the judgment of this Court that defendant is not guilty. He stands acquitted, and is free.”

17

What astonished me was the silence; it persisted unbroken for many seconds, almost half a minute. I glanced at Talbot, at the lawyers, at the spectators; I set down the last sheet of paper and eased back on the bench.

Bryan Talbot stood up, faced me squarely, and said, “Thank you, Judge Lewis. Thank you. Thank you,” in a wondering, almost dreaming voice, and nodded several times with his mouth half open, and then sat down and cried. He bawled, and put a hand on Parmelee's shoulder, groping blindly. Parmelee put an arm around him but went on looking at me, and he too was nodding gently. After a moment he disengaged himself and got up and called to Dietrich. They came to the bench slowly while the audience found its murmur and then its full voice, a babble, but many were nodding and Colonel Oates was pounding the floor with his cane.

I used the gavel, and they subsided abruptly, as though they wanted an encore. “This court is still in session,” I announced, “and I want order. Sit down and be quiet.”

And they did. Quick.

Parmelee reached up to shake my hand. “I really don't know what to say,” he mused, almost to himself. “You have done justice, and it couldn't have been easy. I don't know if there's any higher compliment to offer a man.”

“I wonder if the District Attorney feels that way.” I smiled.

Dietrich blew out a long breath. He looked exhausted. But I saw much in his eyes: relief, good humor, even—well, I couldn't be sure, until he spoke. “That was pretty good,” he said, and his mouth quirked. “For a young judge, I mean.”

“Your apology is accepted,” I said, fighting down a crazy laugh.

“You know—” and he paused.

“Go on.”

“I could have raised hell with you. I never gave formal consent to trial by the Court.”

“That's true. Do you remember my looking at you after Mr. Parmelee's motion?”

“I do.”

“I took your long silence to mean consent. So did Mr. Parmelee, and I think the absence of objection, of even a request for time to think, would have hurt you. Mr. Parmelee and I would have fought you hard on that; and if you'd objected today I would have ruled that you were too late; that by implication your consent was a matter of record.”

He nodded. “We could have had a hell of a fight.”

“Thanks for not making it necessary. But you didn't want to.”

“No,” he said. “So you knew that too.”

“So did Mr. Parmelee.”

Parmelee nodded.

“And I don't blame you,” I went on. “You did your job just the same, and it couldn't have been much easier than mine. Except that I had what my friend Gibbon calls the labor of composition.”

“That was a nice quote,” Dietrich said. “What is he, the source of all wisdom?”

“Hell, no.” I grinned. “He also said that corruption was the most infallible symptom of constitutional liberty. You see?” I was serious again. “A man has to question everything. Everything.”

“You may make the law journal, you know,” Parmelee said.

“My impeachment, you mean.”

He smiled. “I doubt that. I don't know who'd want to make trouble.”

“We'll worry about that when it comes,” I said. We all shook hands again. “How about dinner tonight at the hotel? Think it would scandalize the population?”