Some three hundred years ago, in the time of Thomas Hobbes, John Milton, and John Locke, the British people hammered out a more or less complete philosophy of basic human rights. Assuming the right to life (and without it there can be nothing to bind men together in society), the other rights followed. Liberty and prop­erty were not only necessary to sustain life but also to render so­ciety sufficiently fruitful to sup­port an ever-increasing number of human souls.

Naturally, in a universe in which nothing is very simple, there were operational areas in which rights—even British rights! — seemed to collide. An empirical folk, the British believed in cus­tom, in the precedents of the Common Law. They resisted the im­pulse to codify their rules, reject­ing both the codifications of the Roman law and — in the early nineteenth century — the Code Na­poleon. As it seemed to them, or­derly codification and an enhanced inquisitorial attitude on the part of the police seemed to go to­gether. They wanted nothing of a Gallic — or a Roman — police. No regimentation for an Englishman, not even the threat of regimenta­tion that might be presumed to exist in an armed and highly or­ganized constabulary!

Hang the Rascals!

The fiercely libertarian attitude of Englishmen, however, entailed a paradox: to protect themselves against the necessity of having an armed and powerful police force, the British squirearchy of the eighteenth century decided that the penalties for crimes against life, liberty, and property must be made so horrifying that nobody would dare to transgress. Accord­ingly, they permitted parliament and the judges of England to f ash-ion a series of laws and precedents that became popularly known as the "Bloody Code." The Bloody Code decreed hanging for virtu­ally everything from petty larceny up to the most coldly premeditated murder. It became a byword on the European continent that, though you could almost certainly count on a fair trial in England, you could not count on the most elementary quality of mercy from either jury or judge if you were found to be guilty. Thus, out of an intense desire to protect their basic rights, Englishmen — quite paradoxically — became contempt­uous of the right to life.

Jurors Rebel

In the nineteenth century, with the growth of humanitarian feel­ing, the British, still empiricists, commenced to find ways around their own law: juries often re­fused to convict murderers if there seemed to be mitigating cir­cumstances, such as mental dis­order or the more extreme provo­cation that goes with the crime passionelle. But the precedents that demand capital punishment for murders of many degrees still stand, and the "hang-hard" judges of England still insist on their ap­plication.

In his Reflections on Hanging (Macmillan, 231 pp.) , Arthur Koestler, a refugee from Russian and East European communism who loves England and the Eng­lish, meditates upon this strange turn of affairs. How is it, he asks, how is it that the fairest, most humane, the least violent, people in the world can tolerate the vestigial remains of the old Bloody Code? During the 1930′s, when he was taking part in the Civil War in Spain, Arthur Koestler spent three months in prison under sen­tence of death as a suspected spy. He knows what it is to anticipate the ominous tread of the hang­man. And, since he was himself innocent of the charge of spying, he also knows that justice can frequently miscarry. His own ex­perience causes him to shiver whenever he reads of a trial in Britain — or in America — for a capital offense.

Accordingly, he has put all of his well-known moral passion into his book on hanging. This is an eloquent critique and commentary on how libertarian­ism can miscarry when sympathy is not applied with logical fore­thought in an area where basic rights collide.

Rehabilitation

As Koestler sees it, the death penalty might be justified if it actually had a deterrent effect. But Koestler is convinced — and he cites reams of comparative statis­tics to prove his point — that capi­tal punishment is no more success­ful as a deterrent than imprison­ment for life or detention for a long term during which rehabili­tation of the murderer can be suc­cessfully accomplished. Murders are no more frequent in the European countries — or in the Ameri­can states — which have abolished the death penalty.

The reason the death penalty does not act as a deterrent is im­plicit in Mr. Koestler’s analysis of "patterns of murder." It is not the hardened and habitual crimi­nal who ordinarily kills. On the contrary, most murders are the grisly by-products of marital or lovers’ quarrels, insane jealousies, suicide pacts that are only half­way carried through, and sudden rages that are touched off by drink. Mr. Koestler argues that no believer in scientific determinism can logically blame an unbalanced man for murder. Such a man is the inevitable sum of his unfor­tunate antecedents.

Opportunity of Redemption

But no Christian believer in free will can logically approve of the death penalty either, if it once be granted that it does not act as a deterrent. For the Christian, the only justification for hanging would be its salutary effect on the crime rate of the future. But if it has no effect beyond what can be obtained by simple detention, then charity dictates that a con­victed murderer be given the chance of rehabilitating himself —i.e., of saving his own soul.

Mr. Koestler believes that free will is a fantastic notion in a world that conforms to scientific laws. But he also believes that man is a fantastic creature. His own solution of a mystery is to sub­mit that the universe is still in process of day-to-day creation, and that man is one of the agents of that creation. Hence, Mr. Koestler aligns himself with those Chris­tians who would not willingly tam­per with the life of any of God’s creative agents. The pattern is God’s — and if we believe that it is God’s will that a sinner be per­mitted the opportunity of redemp­tion, then we will not willingly murder even a murderer if no so­cial good is served by breaking his neck.

M’Naghten Rules

Mr. Koestler writes with all his well-known novelistic skill when he is giving us case studies of mur­derers. He also has a nice turn for irony. Noting the English concern for precedent, he investigates the so-called M’Naghten Rules which are supposed to supply the prece­dent for modern British hangings. What he discovers is that the M’Naghten Rules are themselves the result of a violation of prece­dent! Back in 1843 a North Irish Protestant named M’Naghten con­ceived the idea that the Pope, the Jesuit Order, and the Tory leader, Sir Robert Peel, were conspiring against him. So, by mistake, he shot Sir Robert’s secretary, Mr. Edward Drummond. The jury sent M’Naghten to an institution when eight doctors certified that he was insane.

Instead of taking its place among the precedents that make up the Common Law, however, the M’Naghten decision was set be­fore fifteen High Court judges through the medium of a parlia­mentary interrogation. Fourteen of the judges replied that M’Naghten should have been hanged. And because of the "prec­edent without precedent," the Eng­lish have been hanging feeble­minded murderers ever since. A bill which would alter the M’Nagh­ten Rules and abolish the death penalty altogether has passed Commons, but the Lords have re­jected it — and the government has not yet seen fit to resubmit it to Commons for passage without House of Lords concurrence.

Blaming the Industrialist

Mr. Koestler writes about mur­der with the clarity which he brings to all subjects. But he still betrays his original Marxist fool­ishness when he blames much of the severity of Britain‘s "Bloody Code" on the Industrial Revolu­tion. On his own evidence, the notion that thieves, shoplifters, high­waymen, and murderers should all be hanged as "examples" dates back to a time when England was still a primarily agricultural land. The so-called Waltham Black Act was passed in 1722, when Hamp­shire landowners asked for a death penalty law against a band of poachers who disguised them­selves by blackening their faces. The Waltham Black Act was soon stretched by the judges to cover 350 new capital crimes, many of them bucolic in origin, such as stealing a tree. The Waltham Black Act was repealed in 1823, before the Industrial Revolution was well begun. And certainly the Industrial Revolution had nothing to do with the law which pro­vided the death penalty for theft of a squire’s turnips. Moreover, as Mr. Koestler himself tells us, the death penalty for stealing from calico printers and bleaching es­tablishments was repealed on pe­tition of the capitalists themselves.

So much for Mr. Koestler’s sin­gle remnant of Marxist cliché-thinking. Save for this lapse, Re­flections on Hanging is a master­ful piece of logical inference and persuasion.