“I am da Law”

[Durelin]

Middle-earth, fitting in as a part of history, is filled with peoples that are really extremely familiar to us, and we can draw countless anthropological parallels between the fantasy cultures and real cultures, past and present. One cultural aspect of those in Middle-earth that I’d like to explore is a system of law...

Specifically...could capital punishment be something used in, specifically, the Free Peoples’ justice system?

Yes, capital punishment. The be all, end all judgment (at least in this life, if you believe in another, or many others, after “this one”).

Could it be something used only in the very gravest of murder cases (cold-blooded and all that) as it is in the American legal system, or might it be used more often? Would it be as controversial as it is in the real world today?

Obviously it couldn’t be used rampantly, particularly not to the extreme of a Judge Dredd (science fiction) judge, jury, and executioner, but Hammurabi’s Code and the Twelve Tables don’t exactly shy away from death and types of physical harm as punishment.

Now, I know that even some of the “purest” seeming of the Free Peoples were all for killing the evil guys (though of course not all, and not always), but what about severe crime that has nothing to do with Sauron (how would they handle crime without any Dark Lord in the picture, as there wasn't for a time before The Lord of the Rings)?

How could the laws of Elves and Men differ on such a matter?

Kingdoms like Gondor and Rohan, I imagine, could have well-organized, written law. But could the laws of the Elves perhaps be less rigid, maybe even more assumed than dictated?

Could peoples like the Haradrim or the Easterlings, portrayed in some ways as somehow more “savage” or “primitive” (primitive not necessarily being a negative word at all) than Gondorians and Rohirrim and the like, be more inclined to deal out capital punishment and other nasty things? (Again, their law completely separate of Sauron’s influence.)

And we can’t forget Hobbits. Now them I can’t imagine using capital punishment at all. Though I simply can’t imagine a Hobbit actually murdering anyone, either...or do anything nastier to each other than steal each others’ mushrooms. But has Tolkien simply brainwashed me with Sam’s sweetness?

I know that all I’m doing is asking a lot of questions, and that this really becomes a very broad topic, but I have difficulty narrowing it down. I actually started with it more narrowed down, but one question leads to more...and more...and more...

So, two disclaimers other than that: First, is that I’m asking only for speculation, and that’s why I’m using “could” a lot. Whether or not Tolkien gave us such information elsewhere (i.e., Letters and such) is wonderful, and I’d love to know, too, but I personally enjoy speculating. Second, is that, of course, I do not want this to touch on our own personal feelings regarding capital punishment, and if it has to touch on how capital punishment is treated in real life now or in the past, I hope everyone will still keep themselves removed from it as a hot-button issue.

If this is a topic worthy of discussion, and not just a bunch of questions from a bored mind.

Well, that was longer than I meant it to be.

[Boromir88]

I'll get to all the lovely speculation in a bit. But, I think at first I'm going to have to use a few quotes here... I'd first like to note that there certainly does seem to be 'capital punishment' or a 'laws' within both Gondor and Rohan.

People tend to see treason as a very serious offense that back in the days (I don't know much about it's punishment today) but that certainly sent you to death row. Treason was a big no-no, and I think it was a big no-no in Middle-earth as well. In the instance with Beregond, Aragorn had every right 'by law' to take Beregond's life for betraying his service to his Lord Denethor (as well as actually killing people):

And the King said to Beregond: 'Beregond, by your sword blood was spilled in the Hallows, where that is forbidden. Also you left your post without leave of Lord or of Captain. For these things, of old, death was the penalty. Now therefor I must prounounce your doom.
'All penalty is remitted for your valour in battle, and still more because all you did was for the love of the Lord Faramir. Nontheless you must leave the Guard of the Citadel, and yo much go forth from the City of Minas Tirith.'~The Steward and the King

So it certainly seems Beregond's treason against Denethor and 'spilling blood in the hallows' would get you capital punishment. However, Aragorn decided to expel Beregond from the Tower Guard and from Minas Tirith (though gave him comfort in making him a Guard of Faramir. Which I would also guess that if not executing a criminal for a serious offense the next serious punishment would be to expel them from society...where it just so happens to Smeagol:

'No one ever found out what had become of Deagol; he was murdered far from home, and his body was cunningly hidden. But Smeagol returned alone; and he found that none of his family could see him, when he was wearing the ring. He was very pleased with his discovery and he concealed it; and he used it to find secrets, and he put his knowledge to crooked and malicious uses. He became sharp-eyed and keen-eared for all that was hurtful. The ring had given him power according to his stature. It is not to be wondered at that he became very unpopular and was shunned (when visible) by all his relations. They kicked him, and he bit their feet. He took to thieving, and going about muttering to himself, and gurgling in his throat. So they called him Gollum, and cursed him, and told him to go far away; and his grandmother, desiring peace, expelled him from the family and turned him out of her hole.'~Shadow in the Past

Eventhough Smeagol was not a Hobbit, he was very similar and related to them, so I would guess that their laws and punishments would also be rather similar. If there was a really bad trouble-maker that did some serious crimes, expelling them from society would seem to be the worst punishment one could get (as happens what happens to Smeagol). As I agree I simply can't imagine Hobbits having capital punishment.

Also, in Rohan remember Eomer had been jailed for treason and my guess was his punishment was still waiting to be decided:

'It is true,' said Theoden. He had rebelled against my commands, and threatened death to Grima in my hall.'
'A man may love you and yet not love Wormtongue or his counselsm,' said Gandalf.
'That may be. I will do as you ask. Call Hama to me. Since he proved untrusty as a doorward, let him become an errand-runner. The guilty shall bring the guilty to judgement.'~The King of the Golden Hall

Definitely in Gondor and Rohan crimes such as treason and murder would most likely send you straight to capital punishment.

Treason was a very serious offense way back into our early history to the last time I remember all during the Cold War. I wouldn't doubt it if it's still seen as a serious offense today that warrants death. The idea of 'betraying one's country' isn't taken to lightly, especially in war time.

[The Might]

Very, very, very interesting topic.
One reason for the capital punishment in the kingdoms of Men might be treason.
I believe Theoden might have chosen to kill Grima if he wanted to, as it is suggested in the movie, however he decided to give him a chance to repent.
Denethor, on the other side, seemed ready to use this punishment, as he says in his answer to Pippin's oath - "oathbreaking with vengeance"
However it is not made clear if treason would be punished with the capital punishment, but it could well be so.

[radagastly]

I don't have my books with me, so I can't quote, but I believe Theoden uses the word Gibbet when speaking to Saruman. ("To hang from a gibbet for the sport of your own crows!" --?) or something to that effect. In medieval and rennaissance Europe, hanging was usually relegated to the lower classes, while aristocracy was generally beheaded as punishment for capital crime. Obviously, Theoden would not have mentioned a gibbet if he was not aware of it's function, whether it was used in Rohan or not. I suspect it was an option, seldom, if ever, exercised. I imagine it was similar in Gondor.

I can't imagine the elves ever using capital punishment. For one thing, they knew their own people would simply go to the Halls of Mandos when they died, and wait to be re-made (or for the end of the world to come.) The punished could eventually be back among them. While the spirits of Man went beyond the circles of the world, the elves knew not where, I think their own love of Arda and all it contained could not allow themselves to deprive anyone of it's beauty. They might kill in battle, but not coldly as punishment. It just doesn't seem consistent with their view of the world.

[The Might]

radagastly, you make a very good point there as far as Elves are concerned, I must say I agree...
one folk that I would personally see using such a punishment are the Beornings and perhaps also the Woodmen.
The description of Beorn made in Hobbit presents him as a very good friend, but also as a very dangerous foe. And considering the fate suffered by the warg and the orc he caught, interogated, and afterwards quite painfully killed, I personally believe that the Beornings would make use of capital punishment.
Of course his reaction towards the warg and the orc is understandable due to his great hatred, however killing prisoners with so much cold blood hints that the laws in that area were quite strict and severe.
The Woodmen might use such laws as well. They were related to the Beornings and had common ancestors so perhaps their law systems also related. And also because they were not so developed they would, just as Southrons or Easterlings, be more likely to use such methods.

[Durelin]

Thanks for the quotes, Boro! It's been forever since I've actually sat down and read the books, so I didn't recall any mention of such things.

I imagine oath-breaking, and particularly breaking the oath of fealty given to your lord, was of highest importance, as it also served as an oath to abide by his law.

It's interesting: Aragorn actually shows Beregond mercy here, and yet by my 20th-21st century view it seems excessive for him to banish him. He saved Faramir's life, and only hastened the end of the Steward's life. And it's strange to assume that holding a post as a soldier, regardless of where it is, still entails looking out for the safety of your lord. And, if Aragorn was really to follow the law...shouldn't Pippin share the same penalty?

And the same goes for Theoden's remarks regarding Eomer and Hama. I mean really! Obviously loyalty to your lord comes before everything in the society...and considering, it makes sense. It also obviously reflects our past culture, for sure. But that is another topic all together, I suppose.

Yes, it seems likely that the Hobbits would simply banish a person. If that's all Smeagol got (yes, I know, in a similar society), that's all anyone's going to get.

And I agree with you on the Elves, radagastly. There would be no point to it, though I still can see an Elf desiring revenge in some way...I'm just not sure what way.

A gibbet? A lovely thing...I can't imagine any of the "good guys" using those, but perhaps there are some people who they would say deserve such a fate. And though beheading was reserved for royalty...well, when the French had their fun with their guillotine, royalty simply got the blade sharpened. A beheading can still be a lowly and excessively nasty death, if you're trying to cut through someone's neck with a blunt blade...or if the executioner isn't strong and swift enough...or if they want to watch you suffer. I can see beheadings and hangings used, though, by both Rohan and Gondor.

I wonder if the laws of Men would allow for or even demand/encourage revenge, capital punishment taken into the hands of the family and/or friends of the victim. It seems likely to me that would be the case: that men would be allowed to take the law into their own hands because the King cannot always?

Excellent points about the Beornings and Woodsmen, Might. I think both of those groups would also be fine with the idea of taking the law into your own hands.

I also wonder about blood price. Would a price be put on someone's life, and if that family accepted that, the murderer be spared death? Sometimes those Middle-earthians seem too humanistic to put prices on peoples' lives, but then again, they are hardly without classes and hierarchies of different sorts.

[The Might]

I just remembered about one folk who would surely not use capital punishment, even though they were far less developed then others - the woses.

They had a law against the use of all poisons for the hurt of any living creatures, even those who had done them injury, save only Orcs ~ UT, The Druedain

This example is firstly very interesting as informtion and secondly very good to show us that we shouldn't have any preconceptions as far as less developed people in ME are concerned.
The woses were far from the social and economical level reached by Gondor or Rohan, and still, their laws were much more simple and peaceful in the same time.

[Boromir88]

Oooh nice posts throughout the thread. I've enjoyed this discussion so far...

Durelin,

I imagine oath-breaking, and particularly breaking the oath of fealty given to your lord, was of highest importance, as it also served as an oath to abide by his law.

Oath-breaking can be a serious thing, as I said in another thread just ask the Men of Dunharrow.

There seems to be a strong power over words (especially oaths) in Middle-earth...if not, then they would simply be words with no meaning behind them. When Eorl made the oath to Cirion to come to Gondor's aid anytime they were called upon and in return 'finding' Rohan he sealed the choices of all the kings to follow. I'm sure Theoden was a good man and played a part in him aiding Gondor; but I do not doubt also the oath he was bound to played a part (if not bigger). Had Theoden not answered to Gondor's call for aid, Theoden would be in trouble. And trouble that could arguably much worse than being executed. It would effect him spiritually and be a great torment on him...again just ask the Men of Dunharrow.

I love the part in the Ring Goes South and Gimli wants an oath to bind the Fellowship together, but Elrond tells him no and warns him why:

'You may tarry, or come back, or turn aside into other paths, as chance allows. The further you go, the less easy will it be to withdraw; yet no oath or bond is laid on you to go further than you will. For you do not yet know the strength of your hearts, and you cannot foresee what each may meet upon the road.'
'Faithless is he that says farewell when the road darkens,' said Gimli.
'Maybe,' said Elrond, `but let him not vow to walk in the dark, who has not seen the nightfall.'
'Yet sworn word may strengthen quaking heart,' said Gimli.
'Or break it,' said Elrond. `Look not too far ahead! But go now with good hearts! Farewell, and may the blessing of Elves and Men and all Free Folk go with you. May the stars shine upon your faces!'~The Ring goes South

Oaths kind of have two sides to them. Gimli sees the positive side in that an oath may keep a person to his word and therefor not give in. However, Elrond sees the negative side in that a person may not be strong enough to live up to their oath and therefor it could also break his heart.

Oath-breaking is arguably the worst 'crime' in LOTR; and your punishment isn't death, it's lifelong torture and misfortune...far worse than execution.

The question is what makes Beregond and Hama not obeying orders and 'breaking their oaths' different from say the Men of Dunharrow. I think it all depends upon the situation. The Men of Dunharrow pledged to Isildur they would fight for Gondor; but they turned to worshipping Sauron and than fled. Doesn't sound very 'good' and they are slapped with a curse.

Hama and Beregond's were different in the sense that arguably it was better to actually not obey. What I love about Hama and Beregond is that they are guards, yet they do not act like what we would expect guards to act like. They don't act like mindless robots of 'Yes, sir...I'll do whatever you say sir.' They are able to make their own judgements for themselves and reach their own decisions about what's 'right and wrong.' I can't put it any better than from the words of Hama:

'The staff in the hand of a wizard may be more than a prop for age,' said Hama. He looked hard at the ash-staff on which Gandalf leaned. 'Yet in doubt a man of worth will trust to his own wisdom. I believe you are friends and folk worthy of honour, who have no evil purpose. You may go in.'~The King of the Golden Hall

Hama reaches his own conclusion about what to do and he decides by his own will that what's right is to disobey.

Beregond felt like the best thing to do was save Faramir's life and he went through any costs to do it. Afterall Gandalf does say Denethor did not have the right to take Faramir's life, let a lone he didn't even have the 'right' to take his own. Denethor acted like he had the right of the Numenorean Kings to decide when their own death was and as Gandalf points this out to him, he does not have this right.

Or even perhaps it depends upon the person who had the oath broken against them. There are two parties involved in oaths, if one party breaks it, then perhaps it's up to the other party to decide if they should be punished for breaking their oath or not. If we look at the Men of Dunharrow again, they broke their oath to Isildur and it is Isildur who comes and decides to curse them. He was the person the Men of Dunharrow swore to, so he is the one that makes the decision on whether they should be punished for going against their word.

If we look at Beregond and Hama, they did break their oaths to their Lords, however you could argue that their Lords absolved them (at least partially) of their oath-breaking. Theoden called out Hama as an 'inept doorward' yet he realized what Hama did was try to make the best decision for his lord. Theoden had the oath broken against him, so it is Theoden who decides whether the oath-breaker be punished or not...and luckily he decided no...except to have him run as an 'errand boy' for a little while.

Now technically Beregond broke his oath to Denethor...however Denethor is dead and his new lords (for a short time atleast) becomes Aragorn...until Aragorn expels him from the Tower Guard. Nevertheless for a short time it is Aragorn that is his new Lord and it is he that is faced with the decision of Beregond's punishment. And Aragorn absolves Beregond from all of his crimes. Aragorn does feel like he must do some justice and punish Beregond, however as seen he does absolve Beregond from his crimes.

Would you know it's kind of like the Men of Dunharrow. In order to 'break the curse' they had to fulfill their oath to Gondor. Well, it's kind of hard now that Isildur's dead, so it would be Isildur's heirs that would be passed a long with the decision on whether to hold their oaths fulfilled. And it is Aragorn who does this as well.

So, I think it's whether one is punished or not for breaking an oath comes down to the situation. Was it for the 'best' that the oath was broken? Or, perhaps even more important is it up to the 'other party' to decide whether you are punished for breaking the oath or not. Well technically Beregond and Hama did get punished for breaking their oaths, it just wasn't to the extent that the Men of Dunharrow were punished. And seeing as the 'victims' absolved the 'pertetrators' of their oath-breaking than the oath was essentially fulfilled and absolved as well.

I'd also like to point out Tolkien also uses the concept of 'weregild.' The punishment isn't execution for the criminal, however it was a form of punishment for those who committed murder (or injury) against a person's family/property. Weregild is an Old English word that means 'man-price' and it was an idea originating in Germanic societies. The idea was to stop family feuds from happening and about keeping family honor without having to resort to 'capital punishment' or 'physical revenge'. If somebody killed one of your family members (or injury to any sort of property) in order to compensate for the crime, the perpetrator must give some sort of payment.

In Germanic societies the payment was based upon rank. If someone killed a slave of yours the compensation payment wouldn't be all that much. However the murder of a King and his son the payment would be absolutely astronomical. Isildur lays the claim of 'weregild' on taking the ring for the death of his father and brother (caused by Sauron):

'This I will have as weregild for my father, and my brother'~The Council of Elrond

Of course, Elendil was the King and Anarion was his son, two very high ranking people in society...so by the right of weregild Isildur could have taken Sauron's most valuable possession for compensation...and he does so. Now one may question Isildur's motives (after all Anarion wasn't technically killed by Sauron...he was smashed by a boulder flying off Barad-dur). However he lays the perfectly legal claim of weregild upon the Ring and despite Elrond and Cirdan advising against Isildur taking the Ring they do accept the claim. So, I think we can see that there is the idea of 'weregild' also in Middle-earth...or at least there was at one time.

[Child of the 7th Age]

Durelin,

Fascinating topic. I have some thoughts on this, though they are leading in a slightly different direction than a number of comments on the thread.

First, Boromir88 has already cited one instance in Gondor where Beregond's treason might normally merit the death penalty, yet when the actual judgment came the decision was made to render a different punishment. This excellent example isn't the only case where an individual "deserved" death by the laws of Gondor and yet the penalty decreed was one that stopped short of death.

There is another instance even more important to the story that involves Gollum and the Pool of Ithilien. Gollum comes within a hair's breadth of being executed here. First time readers could not know what would happen on Mount Doom if this penalty of death was actually carried out but those of us who've already read the book definitely understand that executing Gollum would change the entire outcome of the story. In my mind, this is one of the most critical scenes in LotR and bears close scrutiny. Excuse me if I quote chunks of it and then consider the wording.

On March 8, 3019, Gollum found the Forbidden Pool and plunged into the water to catch fish. He was spotted by Anborn, a Ranger of Ithilien under Faramir's command. Faramir brought Frodo to a ledge overlooking the pool, and threatened to have the creature below shot, not knowing precisely who he is but suspecting his ties with Frodo. (The italics are mine, and I will explain in a minute why I've highlighted these words....)

" Shall we shoot?" said Faramir, turning quickly to Frodo.

Frodo did not answer for a minute. Then 'No!' he said. 'No, I beg you not to.' If Sam had dared, he would have answered 'Yes,' quicker and louder. He could not see, but he guessed well enough from their words what they were looking at.

'You know, then, what this thing is ?' said Faramir. Come, now you have seen, tell me why it should be spared. In all our words together you have not once spoken of your gangrel companion, and I let him be for the time. He could wait till he was caught and brought before me. I sent my keenest huntsmen to snag him, but he slipped them, and they had no sight of him till now, save Anborn here, once at dusk yesterevening. But now he has done worse tresspass than only to go coney-snaring in the uplands: he has dared to come to Henneth Annûn, and his life is forfeit....

From this, we clearly see that trespassing on the Forbidden Pool of Ithilien carries with it the penalty of death. Moreover, we learn that Samwise is quite willing to have Gollum shot on the spot but that Frodo, after a slight hesitation, cries out on his behalf. Faramir presses for more information....

'I marvel at the creature: so secret and sly as he is, to come sporting to the pool before our very window. Does he think that men sleep without watch all the night? Why does he so?'

'There are two answers, I think,' said Frodo. 'For one thing, he knows little of Men, and sly though he is, your refuge is so hidden that perhaps he does not know that Men are concealed here. For another, I think he is allured here by a mastering desire, stronger than his caution.'

.......

'What then does the creature seek?'

'Fish,' said Frodo. 'Look!'

....Faramir laughed softly. 'Fish!' he said. 'It is a less perilous hunger. Or maybe not: fish from the pool of Henneth Annûn may cost him all he has to give'.

'Now I have him at arrow-point,' said Anborn. 'Shall I not shoot, Captain?' for coming unbidden to this place death is our law.'

'Wait, Anborn,' said Faramir. 'This is a harder matter than it seems, what have you to say now, Frodo? Why should we spare?"

'The creature is wretched and hungry,' said Frodo, 'and unaware of his danger. And Gandalf, your Mithrandir, he would have bidden you not to slay him for that reason, and for others. He forebade the Elves to do so. I do not know clearly why, and of what I guess I cannot speak openly out here. But this creature is in some way bound up with my errand...

In the end Faramir does not shoot Gollum, but places him under Frodo's protection and custody, despite some 'unpleasant' scenes where Gollum is bound and Frodo feels miserable for having been party to this act. So what does all this mean? Here is the main question Durelin raised in the beginning of this thread:

Specifically... could capital punishment be something used in, specifically, the Free Peoples’ justice system?

These paragraphs clearly indicate the answer to this question: yes, the penalty of death lay within Gondor's code of laws and could be used. But this is only half the question Tolkien wants the reader to consider. In this section, Tolkien uses language in a peculiar way that points to the fact that even when a death penalty could be invoked, the more important question is should it be invoked. If you look back at the highlighted passages in my quotes, you will see four instances when the word "should" occurs in the exchange between the men of Gondor and Frodo--spoken three times by Faramir and once by Anborn. In the end, the answer to the question of "should" is a clear cut "no", and it is Frodo who voices that response, echoing some of the same sentiments that Gandalf had earlier spoken to him. It is Frodo's path we are following here, and not Sam's, since the latter will not arrive at this same realization till near the end of the story. (As much as I love Sam, Gollum would have been slain if Sam had been the Ringbearer.)

In these same passages, there are also two references that allude back to earlier scenes in the Legendarium when the whole issue of pity and mercy was first raised in terms of Bilbo and Frodo. One of these is an indirect reference that I did not quote before where Frodo reveals to Faramir that Gollum once bore the Ring. Faramir responds in this way:

He bore it?' said Faramir, breathing sharply in his wonder. 'That matter winds itself ever in new riddles.

The italics here are Tolkien's. I don't think the use of the word "riddles" in connection with the Ring is purely coincidental. The word "riddles" immediately throws our minds back to earlier scenes in Riddles in the Dark, when Bilbo found the Ring but showed mercy to Gollum despite the fact that he might have killed him. The other is the allusion to Mithrandir (already quoted above): a clear reference to the famous scene early in the book where Gandalf spoke to the angry Frodo and adivsed him to show mercy...

'No, and I don't want to,' said Frodo. 'I can't understand you. Do you mean to say that you, and the Elves, have let him live on after all those horrible deeds? Now at any rate he is as bad as an Orc, and just an enemy. He deserves death.'

'Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement. For even the very wise cannot see all ends.

To me, Gandalf's is one of the clearest arguments possible against the death penalty. Moreover, although the reference is clearly to Gollum, the words have such a strong general meaning that, in my opinion, they can be considered in the context of any use of capital punishment. We often talk at great length about the centrality of pity and mercy in Lord of the Rings. That is very true. But it seems to me we also have to look at the obverse of Gandalf's statement. Tolkien is saying something about capital punishment as well: that even when it could be used, it should not.

As to hobbits, I agree with everyone on this thread. Nothing in Hobbit society suggests that the Shire had capital punishment--even in older, cruder times, exile and shunning were the rule for Hobbits. I know there is a statement somewhere (though I can't put my hands on the quote) that no hobbit had murdered another hobbit for many years. This raises an interesting question. Clearly, men did have the death penalty. Moreover, the quote above implies that even the Elves were capable of killing Gollum. Frodo states Gandalf "forebade the Elves" from killing him. Why would Gandalf issue such an order unless he thought the Elves were capable of slaying Gollum in some form or fashion, whether as punishment or simply as a way to stop him from fleeing? If both men and Elves were capable of slaying Gollum, we could even take this equation one step further. Perhaps Frodo's suitability as a Ringbearer not only rested on his general ability to resist evil, but specifically on the fact that he came from the one society that did not practice (or perhaps need?) capital punishment. In my opinion, Tolkien clearly regarded capital punishment as something that ideally should not be used.

P.S. This is a dreadfully long post composed in spurts and chunks, which means I crossposted with Boromir88's latest comments....