The Forms of Law
[Lysander Spooner, (unsigned)]
That the forms of law were all complied with, is the reason, and substantially the only reason, given why we ought to be satisfied that Guiteau was sane and guilty. The testimony of the many eminent physicians—superintendents of lunatic asylums, and long experienced in the treatment of the insane—that in their opinion he was insane, and had been for years, must all count for nothing—must not be admitted to have raised even a reasonable doubt—in the face of the fact that "the forms of law were all complied with"; and that twelve men, with no personal experience with insane persons, and presumably destitute of all the knowledge necessary for deciding such a question, have been made by fossil judges, and ruffian lawyers, and howling editors, and bloodthirsty politicians, and unintelligible, if not unintelligent, "experts," to declare that they believed him sane; or at least sane enough to be hanged
To all this we answer that "the forms of law" have had many and fearful crimes to answer for. “The forms of law” in England, have had to answer for the hanging of great numbers of innocent men, without permitting them even to bring a witness, or employ counsel, for their defense; lest such witness or counsel should induce juries to thwart the determination of the government to hang everybody suspected of a crime.
These "forms of law" were once described, by an English lawyer, in this wise:
- The speedy arm of Justice
- Was never known to fall;
- The gaol supplied the gallows,
- The gallows thinned the gaol.
- And sundry wise precautions
- The sages of the law
- Discreetly framed, whereby they aimed
- To keep the rogues in awe.
- For, lest some sturdy criminal
- False witnesses should bring—
- His witnesses were not allowed
- To swear to anything.
- And lest his wily advocate
- The Court should overreach,
- His advocate was not allowed
- The privilege of speech.
- Yet, such was the humanity
- And wisdom of the law,
- That, if in his indictment there
- Appeared to be a flaw,
- The Court assigned him counsellors
- To argue on the doubt.
- Provided he himself had first
- Contrived to point it out.
- Yet lest there mildness should, perchance,
- Be craftily abused.
- To show him the indictment they
- Most sturdily refused.
- But still, that he might understand
- The nature of the charge,
- The same was in the Latin tongue
- Read out to him at large,
- 'Twas thus the law kept rogues at awe,
- Gave honest men protection,
- And, justly famed, by all was named,
- Of wisdom the perfection."
The practical results of these "forms of law" are well described in an article on Newgate prison! in the “Fortnightly [London] Review" for June, 1802 This prison was always crowded with prisoners, having sometimes as many as "eight, nine, and even twelve hundred souls." For the poverty and misery of the people drove great numbers into crime. Of these prisoners the Review says:
For the bulk of the criminal prisoners there was one speedy and effectual system of removal, that of capital punishment. Executions were wholesale in those times. The code was sanguinary in the extreme. Male coiners were quartered as traitors, and females were burnt. Larceny, forgery, bankruptcy, all these were punished by death, and the gallows tree was always heavily laden. There was every element of callous brutality in the manner of inflicting the extreme penalty of the law. From the time of sentence to the last dread moment the convict was exhibited as a show, or held up to public contempt and execration. . . . . . The actual ceremony was to the last degree cold-blooded and wanting in all the solemn attributes befitting the awful scene. The doomed was carried in an open cart to Tyburn or other appointed place; the halter already encircled his neck, his coffin was at his feet. . . . . . For the mob it was a high day and holiday; they lined the route taken by the ghastly procession, encouraging or flouting the convict according as he happened to be a popular hero or unknown to criminal fame. In the first case they cheered him to the echo, offered him bouquets of flowers, or pressed him to drink deep from St. Giles's Bowl; in the latter they pelted him with filth and overwhelmed him with abuse. The most scandalous scenes occurred on the gallows. The hangman often quarrelled with his victim over the garments, which the former looked upon as a lawful perquisite, and which the latter was disposed to distribute among his friends. . . . . . The populace were like degenerate Romans in the amphitheatre waiting for the butchery to begin. They fought and struggled desperately for front places: people fell and were trampled to death, hoarse roars came from thousands of brazen throats, which swelled into a terrible chorus as the black figures of the performers on the gallows stood out against the sky. "Hats off!" "Down in front!" These cries echoed and re-echoed in increasing volume, and all at once abruptly came to an end—the bolt was drawn, the drop had fallen, and the miserable wretch had gone to his long home.
The story is told that a hangman, in England, being once inquired of, as to how many persons his hanging apparatus could hang at once, replied that “it could hang a dozen at a time, but could not hang more than ten comfortably.”
But in all the accounts we have read of the brutal murders committed under “the forms of law,” in England, we do not remember to have read that when, as in Guiteau's case, the question of guilt was one of sanity or insanity, two professional ruffians were hired to aid the public prosecutor, not in investigating candidly, rationally, and honestly the question whether he was sane, and therefore guilty, but to forestall and shut out that inquiry, by heaping upon him every epithet of abhorrence which the dictionaries could furnish, and thus convince the jury that, although human in form, and sane in mind, he was in reality, such a monster in depravity as had never before been seen in human shape.
And why has such a spectacle as this been endured? Certainly not merely because a man had been killed—for such occurrences are too common to cause either alarm or surprise—but because tens of thousands of ambitious and avaricious plotters have seen that if all their selfish schemes, which they have hoped to accomplish through a president of their own choice, can be defeated by single pistol shot, their occupations are gone
But let us see still further what crimes "the forms of law" have been made to sanction.
“The forms of law" have sanctioned the murder of accused persons—who, from insanity, or any other cause, refused to plead either guilty, or not guilty—by laying them upon their backs on the ground, and then piling weights upon their breasts, until they were crushed to death. Giles Corey was deliberately murdered in this manner in Salem, Massachusetts, in 1692, for refusing to plead either guilty, or not guilty, to a charge of witchcraft.
“The forms of law" have sanctioned “the trial by battle," so called; that is, duels between the accuser and the accused, under the conviction that Providence would give the victory to the innocent party.
“The forms of law" have sanctioned the trial of accused persons by compelling them to "walk barefoot and blindfolded, over nine rod hot plough-shares laid lengthwise at unequal distances."
“The forms of law” have sanctioned the trial of accused persons “by plunging the hare arm up to the elbow, in boiling water,” in the expectation that they would escape unhurt, if they were innocent.
Also, " by casting the person suspected into a river or pond of cold water, when, if he floated therein, without any action of swimming, [his feet and hands, being bound], it was deemed as evidence of his guilt, but if he sunk, he was acquitted."
“The forms of law” have sanctioned the hanging of Quakers and witches in Massachusetts. They have sanctioned the hanging of witches in other countries. They have sanctioned the hanging of great numbers of insane persons in this and other countries. They have sanctioned the hanging of multitudes of innocent men, who were not insane. They have sanctioned the torture of men by the thumbscrew, by breaking them on the wheel, and by burning them at the stake. They have sanctioned the torture and murder of great numbers of conscientious men and women, for holding and avowing religious opinions a little more decent and reasonable than those held by the men in power. They have sanctioned the use of the thumbscrew and other tortures to compel men to confess themselves guilty of crimes, of which the government had no other satisfactory proof. In short, “the forms of law” have sanctioned a great many more horrible crimes in the past, than mankind are likely to tolerate in the future.
Guiteau himself if dead. But the Guiteau case has not yet had its final trial. The final question to be tried will be, whether Guiteau, on the one hand, or Davidge, Porter, Corkhill, and those who have urged them on, on the other, were the real murderers.
But what concerns us all now is, that there shall no longer exist any power, that is capable of establishing such “forms of law,” as will interfere with the substance of justice.
- Lysander Spooner, “The Forms of Law,” Liberty 1, no. 24 (July 22, 1882): 3-4.