IBL06: Sixth Commandment

The Death Penalty

Professor: Dr. R.J. Rushdoony

Subject: Prerequisite/Law

Genre: Speech

Track: 35

Dictation Name: RR13T35

Location/Venue: ________

Year: 1960’s-1970’s.

Exodus 21 of the 12’th verse and then 23 following. Our subject, the death penalty. Exodus 21:12 and 23

Exodus 21:12

“12 He that smiteth a man, so that he die, shall be surely put to death.”

Exodus 21:23 and following.

“23 And if any mischief follow, then thou shalt give life for life.

24 Eye for eye, tooth for tooth, hand for hand, foot for foot,

25 Burning for burning, wound for wound, stripe for stripe.

26 And if a man smite the eye of his servant, or the eye of his maid, that it perish; he shall let him go free for his eye's sake.

27 And if he smite out his manservant's tooth, or his maidservant's tooth; he shall let him go free for his tooth's sake.

28 If an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit.

29 But if the ox were wont to push with his horn in time past, and it hath been testified to his owner, and he hath not kept him in, but that he hath killed a man or a woman; the ox shall be stoned, and his owner also shall be put to death.

30 If there be laid on him a sum of money, then he shall give for the ransom of his life whatsoever is laid upon him.

31 Whether he have gored a son, or have gored a daughter, according to this judgment shall it be done unto him.

32 If the ox shall push a manservant or a maidservant; he shall give unto their master thirty shekels of silver, and the ox shall be stoned.

33 And if a man shall open a pit, or if a man shall dig a pit, and not cover it, and an ox or an ass fall therein;

34 The owner of the pit shall make it good, and give money unto the owner of them; and the dead beast shall be his.

35 And if one man's ox hurt another's, that he die; then they shall sell the live ox, and divide the money of it; and the dead ox also they shall divide.

36 Or if it be known that the ox hath used to push in time past, and his owner hath not kept him in; he shall surely pay ox for ox; and the dead shall be his own.”

A man will act on his faith. If his faith be humanism, then a man will act out his humanistic presuppositions. He will then view the world not is God’s handy work, but is his own. One of the more famous death of God theologians, William Hamilton, cited not too long ago very proudly an experience with his son, and I quote: “The other night I was out in the back yard with one of my children who had to identify some constellations for his science homework. My son is a full citizen of the modern world, and he said to me after he had located the required constellations, ‘Which are the ones we put up there, Dad?’ He had become a technological man. And this means something religiously.” Unquote.

Now this boy was very logical. He had been brought up in a world without God, in a world in which God is replaced by man is God. And so, when he had identified the constellations for his homework, he naturally asked “Which ones did we put up there?” Man was now the maker. If God does not exist, then man is his own God. The worlds Lord and the worlds Maker. Moreover if man is his own God, then man’s life is the highest value, and the greatest sin of all can be a sin against this god to take away his life. And this, of course, is the conclusion of our humanists.

The playwright Arthur Miller, once among other things a husband of Marilyn Monroe, declared and I quote “no principle, however glorious, may justify the taking of life.” Unquote. Life is the greatest value and the worst sin is capital punishment, because it is the deliberate taking of life. Now this point has been made repeatedly, for example the New York Herald Tribune on May 3’rd, 1960, had a long editorial on the execution of Carol Chesman here in California.

And in the editorial it is ready to grant that Carol Chesman may have been guilty. But, it goes on to say “The law should inculcate respect for life by itself, respecting the sanctity of life. The state should not is California did yesterday, put itself in the position of the errant father to the wayward son saying do as say not is I do. Death is final. It leaves no room for second thoughts or for corrections of the errors that are mathematical certainty in a system of justice based on fallible human judgement. And the quintessential premeditation which judicial killing represents makes it more coldly vicious than a crime of passion! The very concept of a death chamber is antithetical to the ideals of western civilization.” Unquote.

So, the New York Herald Tribune Times said, the worse crime was Chesman’s but of the state of California because of it’s cold blooded killing. And it declared that the taking of life is alien to the ideals of western civilization. At that latter point they were accurate, if the ideals mean humanism, which they have become. Or, to quote someone still further, Howard Jones an English sociologist at the University of Ulster[?] who writes in his book Crime in a Changing Society” And of course, increasingly the idea is that there is no such thing as crime or justice. Because, to presuppose the idea of justice is to say that there is the idea or standard or a law above man. But if man is his own god, how can he have any law or justice above him?

So he says concerning justice and I quote, “But could all this instead be some kind of historical confidence trick? It has already been suggested that our idea of justice may be a rationalization of what is at bottom punitive behavior. This would not be to argue that the idea of justice is a fake but rather instead of taking it at face value we might try to understand what needs it is intended to satisfy. It may appear then as a kind of collective psychological defense. As proof of the validity of our ideals we are often inclined to refer to the sense of conviction that we and other people posses about them.

Most of us certainly have strong convictions about the rightness of the ideal of justice, but all that a sense of conviction does is to prove it’s appropriateness for us. That in a present state of our emotional economy, such a belief has a very special and much needed part to play. But justice seen in this light is not merely the solvent of unrest within us, it is a positive outlet through which these tensions can be discharged in, as it seems to us, a constructive fashion.

Through the idea of justice the bad things within us are transformed into something new and worthwhile, all this so long as we do not look too closely at the outcome, or to stand the phrase upon it’s sense and thus perhaps give it more validity: “justice made[?] more often manifest the appear to be done then to be done in fact.” Unquote.

In other words, according to this sociologist, justice is the way we have of projecting the evil within us. And so, WE are the evildoers if anyone is in demanding justice against those we call offenders. Now again, his position is logical. If man’s life is the highest value and man is his own God, anything that harms it is the supreme evil, and there can be no ideal of law or justice above man because every God is above every law, and is the source of whatever can be turned law. We have as Justice William O. Douglas of our supreme court has declared, now moved in law from the sovereignty of God to the sovereignty of the sovereignty of man. And so, he says, of those who still believe in God and demand law and order and I quote: “Law and order is the guiding star of the totalitarians, not of free men.” And we who believe in God and these totalitarians.

He continues to say and I quote “Revolution is therefore basic to our rights of man”. Unquote. Because, as he goes on to argue, man is above the law. We have therefore a religious war in progress. Not a shooting war exactly although it is in part, this is what the rioting is about in the streets. They are shooting at us, at our world of law and order. But it is a war between two religions. Humanism, and Christianity. And the death penalty brings it into focus.

Now, the death penalty is very very early declared in scripture. We meet it first in Genesis 9:5-6. As we have previously seen, the death penalty in scripture applied to a number of crimes, we will review some that we have not previously considered. Including the fact that habitual criminals and incorrigible delinquents were to receive the death penalty. For other crimes there was to be restitution, except for minor crimes where there was to be corporal punishment; a beating. The prison system came into effect at the end of the 18’th century. And the last year, the last decade of the 1700’s. This is a fact that is admitted by very liberal commentators like Martin Mayor.

It was a humanistic device. Humanists feeling sorry for a man and being hostile to the whole system of restitution, felt that prison was a more humane method. Now, of course, they are attacking the prison system their own answer and are saying that psychiatric treatment, mental hospitals are the more humane system. So that, their plan is to replace prisons now with mental hospitals, and increasing the larger number of cases each year are referred to psychiatric cults. We do have psychiatric courts, today. For example, there is one court in the city of Los Angeles which handles only those cases which are cases where the plea is to be not guilty by reason of some mental condition or other.

But increasingly this new method, this humanistic criminology, because it hold to an environmentalism places the guilt not on the criminal but on the society. And so it aims at the psychological reconditioning of all men. And this is of course what sensitivity training is all about. Now this environmentalism, this psychological and other reconditioning of all men finds it’s most logical statement in Marxism. It of course has it’s origins in evolution.

Because evolution to some degree inevitably says that environment creates man. Le Marcionism[?] stated this most openly. But even in Darwin with his modified Le Marcionism because he did postulate that as the first species of life moved out of the slime, it was conditioned by it’s environment to make certain changes. This is why Darwin and Angles, Marcionangles[?] both hailed Darwin’s book and said Now communism is inevitable.” It was inevitable because the essence of communism required evolution, and evolution once being a scientific fact ostensibly then communism, marxism, was inescapable.

Falling for the total psychological reconditioning of man and society as the next step in evolution. Lincoln Stephens, the american marxist stated very clearly at a banquet once when he turned to the bishop who was at the speakers table beside him and said “that you blame the serpent for what happened in the garden of Eden, but our position is that it was the apples fault.” It was the environment.

Now as we analyze the biblical law with regard to murder and the death penalty one of the first things we note that as our scripture made clear, there is no ransom for murder. Murder requires the death penalty unless it is an accidental killing. But otherwise, all murder requires the death penalty. The accidental killings that are referred to are things like two men working and axe head of one man breaking off and hitting the other man and killing him. If the man was not aware that there was any hidden flaw in the axe or of anything that would cause it to break suddenly, then he was not guilty, it wa not murder.

But murder, apart from that required without variation the death penalty. This is clearly and unequivocally stated again and again in scripture. Second, as is stated in Genesis as well as in the Mosaic law, animals as well as men can be guilty of murder and must die. So that; and the cited case is that of an ox, if an ox gores a man or a woman or a child, the ox dies. This incidentally is still a part of our law. But, if that ox or animal, whether it be a dog or bull or any kind, a billy goat, had a record previously of violence of goring people or of threatening, and the owner had been informed of this and had done nothing about it, then the owner also is liable to the death penalty. In this case a ransom or restitution can be made. A strict penalty can be enjoined.

But apart from that the animal is liable. Now third as we have seen from our scripture the principle is an eye for an eye, a tooth for a tooth, now that doesn’t mean literally that if you lose a tooth you knock out a tooth from the other man. The idea is the punishment is proportionate to the crime. The penalty and the crime have to match. Therefore, a life for a life. Now, this has reference to the act not to the state of mind. As long as there was a killing, that principle is life for a life unless it were accidental.

This applies to man, it applies to animals. This has tremendous repercussions and has had for centuries, until about a hundred and twenty years ago. It meant that when a man was on trial he was on trial for his act. And his mental condition had no reference to it. Thus, the plea of not guilty by reason of insanity is a modern one. It arose in 1843 in the trial of Daniel McNaughton for the murder of Edward Drummen, secretary to sir Robert Peel[?].

It was a deliberate, a planned, murder. However it was ruled in this case that he was not guilty by reason of insanity, and the McNaughton rule was that every man is sane unless the contrary is proved, but a man who labors under a defective reason and does not realise the nature of his act at the time is not guilty by reason of insanity.

Now this had tremendous repercussions. Immediately a new kind of ground could be pleaded. A man could plead that he was so drunk at the time that he had no awareness of what he was doing. There was a defect of reason. A man could plead therefore that he blacked out at the time, and of course we’ve had endless pleas. And so, it became the burden of the court then when there was a plea of not guilty by reason of insanity although the rule had said he was sane unless otherwise proven. When the plea was not guilty by reason of insanity there was a {?} both to prove that he was insane and to prove that he was not insane. And the law, at this point, became very fuzzy.

Then in 1954 Judge David T. Baslin in Washington DC, in the Dermon Trial, the trial of Monty Dermon a housebreaker and a passerbagchecks[?] ruled --and this is known as the Dermon rule-- that no one could be held criminally responsible if his unlawful act was the product of mental disease or mental defect. Now, this seems to be very little different from the McNaughton rule, but with the expanding definition of mental disease or mental defect an alcoholic could be a person with a mental disease, it’s a sickness you see, not a moral responsibility. Or a man who has been criminal off and on throughout his life as Monty Dermon had been, must be mentally unstable! After all, if he were not mentally unstable, why would he be involved in crime over and over again?

Passing bad checks and breaking into houses, there obviously was a mental defect. And of course this led to all kinds of peculiar decisions in various areas. For example, when I was in Nevada, there was a case where government agents had worked through a bureau to destroy a rancher who had stood in their way. The man fought it from the courts and it was ruled in his favor but the government appealed to the supreme court! And the supreme court guaranteed the correctness of all the facts but it said unless [sanity] could be proven in the minds of these government officials, he had no case.

In other words, crime no longer had reference to acts, but to mental condition! This of course was the case with the Walker Liable[?] suite[?]! General Walker was severally and savagely liabled[?] in the University of Mississippi case. Acts, words were attributed to him that were totally unrelated to reality. He had in fact attempted to restrain the students from violence and had pleaded with them, the reports were deliberately false, he sued and won. The statements were liabilitiests[?] to the extreme as were the actions of the government in seizing him and making him a ward of a mental institution. The supreme court reversed it. You would have to prove they said that in the minds of the newspapers at the time there was a deliberate malice towards him. And if of course they say, there was no malice, how can you prove their mental condition was otherwise?

In other words are disassociated from the mind of man, this is a schizophrenic position indeed, but it makes conviction increasingly impossible. It sets aside of course, the life for life principle of scripture which is the principle of justice itself. In favor of a humanistic concern for the life of the criminal. And yet, the irony of it is those who are involved in crime, now are finding that it’s a worse blot on their record when they leave a mental institution than when they leave a prison. So the humanists are being hoist on their own petard. And yet of course, the trend continues to destroy our present system of law entirely and replace it with psychiatric courts.

Doctor Carl Menager the psychiatrist has written a book, The Crime of Punishment in which he says that to demand punishment of any crime reveals us to be the really sick one. We are the persons who are guilty, the worst criminals. And he goes on to say and I quote “I suspect that all the crimes committed by all the jail criminals do not equal in total social damage that of the crimes committed against them.” Unquote.

In other words, the greatest crimes are those of imprisoning these poor unhappy people. That all the crimes committed by all criminals are not equal to what we do. Moreover he says and I quote “We need criminals to identify ourselves with, to envy secretly and to punish stoutly. They do for us the forbidden illegal things we wish to do! and life scapegoats of old, they bear the burden of our displaced guilt and punishment. The iniquity of us all.” Unquote.

And further, Menager says, and I quote “the great sin by which we are all tempted is the wish to hurt others, and this sin must be avoided if we are to live and let live.” Unquote. In other words, we who hold to a biblical standard are the worst more depraved criminals. I might add that Menager’s book has been extremely well received and is having a powerful influence on both the courts and the public at large. At the 1968 American bar association one speaker suggested --and this was the tenor of the entire convention with the exception of one speaker-- he urged that rioters be paid rather than punished because their work in rioting is so useful socially in calling the attention in society to the evils they are perpetrating.

Ramsey Clark who was one of the speakers at the same American bar association convention went to Congress and called for an end to capital punishment in federal crimes. This trend of course is not only in the United States, it is further along in Canada, in Britain, in continental Europe, and in fact in Germany today there are unions which are recognized by the state being organized in the prisons to protect the rights of the Congress. It is no wonder then Earl Stanley Gardner has remarked and I quote, “the rights of the individual are being protected, proved the individual has committed a crime.”

What this modern humanistic doctrine is doing is to eliminate the doctrine of individual responsibility. This is the meaning of the plea not guilty by reason of insanity. It eliminates individual responsibility and opened the door to social, to collective responsibility, to collective guilt! And of course this is exactly what we’ve been subjected to, is it not? When Oswald shot President Kennedy, was there anything said about Oswald being a communist and individually guilty, or the communist guilty? No! We were told that we all should feel guilty! And this theme is increasingly stressed. Individual responsibility when it is denied is replaced with social with collective responsibility so that it is the innocent who are made out to be guilty.

The extent to which this is being carried is repulsive to the enth degree, but it is actually being stated now in rape cases, that women are guilty. That these poor weak persons are inflamed, or that these women because they are white or well dressed and attractive, make these criminals feel unwanted and humiliated, and so to equalize the situation they have to strike back. This is seriously being advocated even in trials.

Take away the biblical faith and you take away the doctrine of individual responsibility. The other day one woman from Saint Paul, Minnesota, a Mrs. John Connally... a tourist here... attended the Sar Hong[?] hearings. She came out and said to a newspaper man and I quote “I think this poor fellow Sar Hong[?] is a very sad creature. It’s hard to imagine anyone who would be driven to something like this.” Unquote. And of course this is the theory, this foolish woman reflects the whole of the modern humanistic sociology. A person is no longer responsible, they are driven! Driven by whom? By society. By the innocent. This is the logical conclusion of the plea, not guilty by reason of insanity. The criminal act is replaced now by theory, by mental conditions, individual responsibility by social responsibility, and justice as we know it disappears.

But the death penalty is required in scripture. Required for a number of offences. We’ve discussed some of them previously, others apart from murder are: incest, bestiality, homosexuality, most kinds of rape, offerings of human sacrifice, and, failing to restore the pledge or bailment[?]. We shall deal with that at a later date. The removal of both faith and law have a serious effect on society. Many laws enforced by their mere existence, when a society has some semblance of order. An interesting example of this was a situation in New York City in the early 1920’s. The public library was having an enormous amount of theft. Books were stolen by children who were going to used bookstores and selling them. It was children, because the money in it was small. They would make $0.25 - $0.50 a book or less. And so a law was passed making it a criminal offense not only to do this but for anyone to buy or sell a book that had been stolen from the library. Immediately all the used bookstores stopped buying them and the thefts ceased.

But this kind of thing happens more often. A law enforcing itself without any punishment or conviction ensuing, when you have a more stable society. But when you reach the point that we have today, the books are stolen not to be sold or enjoyed, but just to be destroyed! Thus the new problem in New York and elsewhere is not that the books go from the library but they are torn and destroyed in the library just out of sheer destructiveness. There is no longer any moral foundation in the society and so there is a collapse. You need therefore, both the law and the law structure and undergirding it the Christian faith. That makes it both possible to enforce the law and to have people that will obey the law.

Now of course as we consider the death penalty, one of the questions that always comes up --and it is well to consider it now by way of conclusion-- is that our biblical system of law enforcement, death penalty, imprisonment, so often gets innocent people killed. That innocent people are always being executed or sent to prison. What are the facts? The reality is that as you go across the country and study the indictments and the consequent results of those indictments, that by and large our courts and our district attorneys are so careful that an average of seventy to eighty percent indictments result in a guilty plea. In other words, the person indicted is so obviously guilty that seventy to eighty percent of the persons who were indicted plead guilty.

Of the remaining twenty to thirty percent, most are convicted. Some are released, and this is especially true in rape cases because of the unwillingness of the complaining party to go to court. A few are released because guilt is not proven. Our criminal courts rarely see innocent men. They do occasionally, but they rarely see innocent men! In New York city incidentally, and those of who who have ever gone to New York know that virtually all men wear hats there, if you don’t wear a hat in New York you’re obviously a tourist, and they’ll ask you where you’re from. Unless you’re a tourist or a criminal lawyer. Criminal lawyers cannot wear hats because they are inevitably stolen when they go to court! It is impossible for a criminal lawyer to go to court and put his hat down without having it stolen, because apart from the lawyers there are only criminals in the court awaiting a hearing.

And so, they go to court and they stand there with their coat over their arm and their briefcase in their hand because they do not dare put them down. This is not all. The clients of criminal attorneys not only are almost inevitable guilty, but they are given to defrauding the lawyer that they have. And so, across the country in the criminal court there is a code word or a code statute --it’s a mythical one that the lawyer pleads if he has not yet gotten his money out of his client. He asks for a deferment on grounds so and so, and he names so and so, some technical word and a code number and the judge knows he has not collected from his client. And so he defers the trial until the lawyer can collect his fee! Because both the judge and the attorney and the prosecuting attorney know that the lawyer will starve if he doesn’t collect before the trial.

Are we convicting innocent people? On the contrary. The courts, the defense attorneys, the prosecuting attorney’s know that almost inevitably they are dealing with guilty men. There are innocent men convicted at times, and I’d like to cite one such case because we need to give a total picture: a very famous case, again from Nevada, the Dudley Boil case. From the depths of the depression. Boil was a mining engineer, a graduate of the University of Nevada, a native of Goldfield. He had offended certain peoples, there was a bank robbery at the bank of Sparks and he was arrested. Over a month after the robbery of the Sparks bank, Boil was identified by the bank personnel who had first declared that they could not possibly identify the masked robber who had been in the bank when the doors opened the morning of the robbery.

Now, the trial was taken by Pat McCarran, a much vilified man but a great senator. And this is the kind of thing that McCarran faced in that trial. One of the most unique devices used by the prosecution was that the state called to the witness stand the one man that one man who could prove Dudley Boils alibi. That he had left Reno early on the morning of the robbery and journeyed by automobile to Goldfield. Summerfield enlisted the mans name and address and then dismissed him from the stand. Thereafter McCarran continually overruled by judge George Bartlett was unable to cross examine the man or elicit from him the confirmation of Boils alibi. This would be unbelievable if it were mere news reporting but the case was transcripted and this transcript is available.

Even on appeal, Judge Edward A. Dukker who had seceded McCarran on the supreme court handed down a terribly {?} decision against Boil, who had been sentenced from five to twenty years in the state prison. He was released after six years and subsequently committed suicide. When he had been working for parole Boil had written to McCarran, he wrote “You know and I know that I am innocent.”

This was unfortunately in the depths of the depression when everyone was desperately distracted. There was much to suggest that when the owner of the bank of Sparks desired a conviction it could be attained. There were several other cases where the defence of friends of the bank owner was paid for by him. Now there’s no denying that cases like this exist, one of the most famous cases in the United States is the case of Doctor Cook, who probably was the real discoverer of the North Pole. Several books lately have confirmed that. He was denied this because a military man also claimed to get there and got there some time after he did, Admiral Perry, he was viciously slandered, then when he went into business he was arrested and convicted, sentenced to prison on a charge of fraud. Although it was known all the while that the oil company he represented was fabulously rich and there was no fraud, in fact, everyone was going to profit highly by it.

Now I cite these cases not because they are common but because I want to give a rounded picture. It is important for us to realise that the law is fallible. We do have fallible, sinful, men. But the fact still remains in the face of all of this --and certainly our courts are at their worst today-- most of the men indicted are still guilty. And there can be no justice greater than that of destroying law and order because occasionally innocent men suffer.

Dudley Boil did suffer, Doctor Cook did suffer, unjustly. But shall we therefore do away with the best system of justice, biblical justice, the world can know? Shall we destroy the courts because they are not perfect? On the contrary, we need to work to both improve law and order and to reestablish the foundation of faith which is necessary to undergird law and order. And this is our major problem. Several weeks ago I cited the fact that in Berkley the police are finding it impossible to cope with the problem of narcotics. On a single Saturday night there was by two thousand pot parties going on, and you have an informer or policeman at each one. And the answer of course is no.

But even more significant, the problem with respect to juvenile delinquency. Five years ago the situation was serious enough. One-ninth of all the juveniles in all the United States have had some kind of experience with the courts. One-ninth. And that does not include those whose parents intervened and made restitution and prevented the matter from going to court. One sixth of all juvenile boys have been in the courts.

And the situation today is far worse than it was five years ago. It means that we are facing a situation of anarchy. We need law and order. But men act out their faith, and when the faith of men is humanistic we are going to have a world of anarchy and tyranny! And these juveniles are acting out the faith which they are taught in the public school. The results should not be a surprise.

Except the Lord built the house, they labor in vain that build it. Let us pray.

Our Lord and our God we give thanks unto thee, that thou art on the throne. That the government is upon thy shoulders. And we come to thee O sovereign one, beseeching thee to make use of us unto the end that Thy word may again prevail on the councils of state. That the kingdoms of this world might become the kingdoms of our Lord and of his state. Make us ever bold and confident as we face the powers of darkness. Knowing that, if Thou art for us, than who can be against us? O Lord our God, establish thy word, manifest thy saving power, and use us to thy praise and glory. In Jesus name, Amen.

Yes?