Complete Works of Ford Madox Ford, page 1035
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All laws are rule-of-thumb abominations because they are the expression of the voice of the political majority at any given moment. They will thus be certain to press unjustly here and there; nowhere can they ensure the enactment of justice. Laws apply only to theoretic norms. No norms exist. That is your reductio ad absurdum.
It is frequently said epigrammatically that the opinion of the majority is always wrong. Be that as it may, since it is abhorrent that one man should live in subjection to another, it is wrong that minorities should be subject to the will of majorities. Why should I, a, let us say, Quietist Anarchist living in the mild climate of the Great Route, be subject to the law expressing the conscientious opinions of you, an absolute monarchist, living in the bracing climate of the State of Maine or in the Pas de Calais? Equally why should you who are an absolutist be subject to the no-law of me, the Quietist Anarchist? Neither is right, neither reasonable, neither alternative is even practical. One or other of us is the more intelligent. It is inexpedient that the more should be governed by the less intelligent... but it is just as wrong the other way round.
The only way to get round that dilemma is to split great national units into smaller units without barriers, each governed by its custumals... its remembered, not written, body of customs. Then, if I live in a place where there are too many Absolutists, I can move a mile or so away and find the Quietism I require. Or, if you find me and my kind too much for you, you can move onto the next hill and have a coronation service once a week. There is absolutely no sane reason why you should not pay taxes so that your Sovereign by divine Right may give you daily raree-shows and his hand to kiss as long as you do not send your tax-collectors to me. There is no sane reason why you should not do that and live next door. In a house I sometimes inhabit there are, on one floor, myself and a Jew. On the next a Hindu missionary and a believer in the Hellenic deities who wears a toga; below an Esthonian belonging to the Greek Orthodox Church and a French Royalist excommunicate by the Church of Rome.... All these people pay their contributions and attend the rites of their respective cults and all, when they meet on the stairs, converse for a minute or two, smile, and pass up and down without the beginnings of a quarrel. If the Churches have been able to arrive at such a state of relative civilization, why should not the States? You have a macrocosm — an immense sketch — of such an ideal working indifferently well in this nation with its differently working, mostly, unfortunately codified custumals. A man in Georgia may not go fishing without the written permission of his wife... but he does not therefore want to cut the throat of the Pennsylvanian who may.... Or you had a still better example in the German Empire before Mr. Hitler destroyed it. That Empire consisted of forty-nine sovereign states each completely differing the one from the other in forms, constitutions, customs, rituals. There were Free Republics like Hamburg or Bremen, Absolute Monarchies like Prussian, Constitutional monarchies like Württemberg, Bavaria, or Hessen Darmstadt... all living perfectly peacefully side by side in the same national frame, with just the proper amount of local jealousies, costumes, beverages, and methods of cooking a sausage.... And just wait till we get back to he very centre of the Great Route....
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Let us say that Anglo-Saxon law — and, if you like, more particularly that of Fleet Street and Flemington — is the best that there is. If that is so it is because it is derived directly from customs. Customs are more satisfactory than laws because all the citizens or subjects of a political unit have had a hand in evolving them. Laws made by legislatures have the almost universal defect that they are inspired by the passion of property. The history of English law was for centuries a long tale of the struggle between the politicians in parliament and the juries in the courts — the politicians making laws that made a cow more valuable than the life of a man and the juries establishing customs of the courts that frustrated the politicians. You had, thus, Case Law, established by custom or precedent, instead of codes established on systems. At Flemington, as in Fleet Street, you administer an almost identical Law that has been handed down from the time when small bodies of Small Producers stood about under oak trees and discussed what should be done about this or that man who had done this or that. When a dozen similar cases had been similarly handled a custom was established.
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Military Law is Anglo-Saxon civilian law rendered still more satisfactory because being applied by men of the same profession to others of the same, it is applied with comprehension for a given end. It is more heinous to get drunk out of barracks than in because it lessens the esteem of the community in which the given unit finds itself. It is more heinous to steal from a comrade than from a civilian because that leads to internal ill will... and so on. Above all, it was not originally inspired by the passion for acquisition. A court-martial, therefore, comes nearest the original Anglo-Saxon, small, outdoor tribunal that is the only satisfactory court.... Of course it is only really satisfactory when the village inhabitants are educated men... Educated, not instructed.
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But every kind of punitive law is bad and I do not believe that any punishment ever acted as a deterrent.... Unless it is a physical punishment. Shootings at dawn will stop epidemics of desertion in any army; floggings, epidemic crimes of violence. But floggings are against the world conscience of to-day... and that is a good thing.... A progress. The next stage is to get a public opinion that shall be as strong against murder by the State as it is against the minor physical punishment of flogging.
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The Germans have — or perhaps it is only that they had — a humane practice in the matter of the capital penalty. Not merely the equivalents of the sheriff but the judges, and prosecuting and defending counsel had to be present at executions... and the criminal is executed with a sword. The Germans, indeed, had also the practice of letting prosecuting counsel address questions to witnesses only through the court. As in our courts-martial, counsel has to say: “Will the Honourable Court ask the witness such and such a question?” That, as I have said, prevents the witness’s getting confused and gives him time to think of his answer.
For myself I would make not only sheriff, judges, and prosecuting and defending counsel be present at executions, but every inhabitant of the township in which the trial takes place. Compulsorily and without liquor taken beforehand or for two days afterwards.... That was why I welcomed the crowds in the Flemington court-house. A certain percentage of the people there present prayed for the prisoner during the waiting for the verdict. No educated person could do anything else.
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I do not say that it is altogether good that one should pray for every person who is accused of atrocious and, humanly speaking, unpardonable crime. Ferocity in punishment has that defect. It arouses sympathy for the victims of the law... and against the victims of the criminal.... But it is worse that human beings should see nets closing pitilessly round another human being and not feel sympathy for him.
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At Flemington, in fact, it was not merely a miserable German rendered un-normal by the late war who was on his trial. It was humanity... humanity that still believes that putting out an eye is a remedy for another’s eye having been put out. It was you and I who were on our trial. Because we have not sufficiently exerted ourselves to get rid of that belief from the muddled brains of humanity. It is not laws that can better the world; only the public conscience can do that. Of that you had evidence enough during prohibition days. It was all our public institutions really that were on their trial at Flemington. Perhaps it was really democracy — though poor democracy has been lately so hard hit that one is reluctant to say so.
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Democracy, then, has broken down.... I think we may say it has broken down... because it is unsuited to deal with vast masses of human beings. We elect representatives for everything and once they are elected we lose control of them completely. We ought, when we vote, to vote for laws, not for men to make laws for us. The men we now elect make not only our laws for dealing with specific instances — with murder, marriage, insurance, but also our Law — the spirit in which our laws are administered. But there exists to-day hardly a man, far less any body of men, who can be trusted to make, for immense bodies of humanity, laws that will not cause atrocious injustices and entirely defeat their own ends. Or if such men exist they are thinkers. Thinkers do not possess the gifts of histrionic prostitution that will make them appeal to vast electorates.
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What was unsatisfying at the trial at Flemington was the undue vindictiveness of the prosecution and the moral cowardice of the defence — both being political products.
What, that is to say, distressed my friend the barber and his fellow-citizens was that the body of the child supposedly murdered by the prisoner was never identified in court, to the jury or to the satisfaction of any lay person who followed the case. The defence gave that part of their case away because they were afraid of shocking the jury: the prosecution accepted that giving away because they were determined, not to elicit the truth, but to secure a conviction.
... For the good of their political careers.
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This is not indicting the legal practice of the State of New Jersey. The same thing could have happened at any English assize trial. By the customs of the courts a prisoner is bound to accept the consequences of his counsel’s actions. If that ends in his being electrocuted so much the worse for him... and for the dissatisfied lay person who has followed the case.
The professional lawyer will say that the lay observer has no right to judge; trials he will say, are matters for professional lawyers and for them alone. The jury, he will say, sufficiently represents the lay citizen.
The fact is that the professional lawyer should not exist at all: whether or no you have juries does not very much matter. Criminal procedure should be so simplified that any member of the public ought to be able to defend or prosecute... as in the case of the Army where every officer must have sufficient knowledge of military law to be able at any moment either to defend or prosecute.
The professional lawyer who prosecuted at Flemington was an elected officer of the State. His future career depended on his success in prosecution. In England prosecuting counsel is nominated; if he is keen to succeed in prosecution it is because he likes sport. His superiors who have nominated him do not care whether he succeeds or fails. Theoretically the election of State functionaries is more democratic, but I think the English practice works out better.
The Public Prosecutor, be he called Attorney-General, procureur de la République, or what you will, is a functionary of the State. It is his duty to preserve at least an air of impartiality; he is there to discover the truth, not to hang men. He is there to see that whatever happens the prisoner gets justice.
The prosecutor at Flemington made no pretence at all to impartiality. He expressed personal hatred for the prisoner; he expressed his conviction that the prisoner would sizzle in hell; he told the jury that they would make him the happiest man on earth if they would send the prisoner to the electric chair.... He lowered the awe in which the State should be held as judging between man and man. A judge of the courts of the Isle of Man swears to see justice done between man and man as equally as the backbone of the herring does lie amid most of the fish. A State prosecutor should write those words in his heart or his State will be discredited.... That is the point.... His State will be discredited. Before all the world if all the world is paying attention.
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That was what gave me the most acute discomfort whilst I was in Flemington... the final address of the prosecutor to the jury. It took place under the eyes of the whole world. I had almost physical pain from the thought that at a few yards behind the small of my back a wire started from the court-house and went under the Atlantic. In Westminster, in Paris, in Moscow, in Rome, they would be hearing the words of that atrocious performance almost in the same instant as I heard them. And it was an atrocious performance, even as far as the mere words were concerned.... And as for the manner.... I could only thank God that the invention of television had not made greater progress.
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I think I have made it plain by now... if I haven’t I here put it in the simplest words that I can think of — that my loyalty to this country, the United States of North America, is an emotion as complete as can be that of any man to any country. I wish it, that is to say, and to all its inhabitants, nothing but well, and if anything that I can do can conduce to their comfort and happiness and pride and well-doing — except the winning of the Davis Cup — I can be trusted to do that thing. And if, anywhere, any plot should be agate for their undoing, I can be trusted to do all that I can to denounce and hinder it... except always again in the aforesaid matter of the Davis Cup, the winning of which is essential to the comfort, happiness, pride, and well-doing of the country of my birth. The United States having such a lot of other largests in the world, can well afford to do without it.
I do not say that my loyalty to the Kingdom of Provence is smaller... and, indeed, I have just as much loyalty to the south coasts of the country of my birth, and then to the Mediterranean coasts by Diana Marina, where Columbus walked westwards, and to those of Spain, Monaco, and Jaffa.... Which is as much as to say that I consider all the territories of the Great Route to be one Republic or Empire or Soviet or Civilization.
Still, one owes, as a proper man, a little touch of special loyalty to the tracts of land which one most inhabits, those being in my case the Eastern States from New York downwards... and Provence; so that I seldom know exactly where I am at any given moment unless I up and think about it. I detest, that is to say, to hear any one agglomeration on the rim of that great oval collectively miscall any other agglomeration.... And on that day in Flemington I felt real physical pain, going from my heart across my chest, at the thought that that atrocious performance going on beneath my eyes should cause miscredit to attach to that place and its wide surroundings.
Fortunately that performance came late in the proceedings; the rest of the oval route had supped more than full enough of horrors. The foreign reporters were sending very little over that wire; the prosecuting attorney got almost no space and very little more harm was done.
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I will recapitulate and dot the “i”s of what I have said of criminal jurisprudence and go one step further in my prescription for the saving of mankind. Your immense body politic cannot be immense enough. The whole of my oval at least will have to form one Republic, Empire, or Utopia before we can get much further... but a very loose Empire, Republic, or what you will, held together by almost invisible if absolutely indissoluble federal ties — the whole of the oval and all of its hinterlands that are of good will and are ready to participate in that enormous Pax Romana.
But the individual local units should be the smallest possible. So that their public assemblies, whether for deliberation or — if punishment still finds place in the public psychology — for punishment, should be of a complete intimacy.
It is essential, if public humanity is to make any progress, that every man of the Republic should vote on every measure put forward by Federal authority. This would reduce Federal measures to a minimum.
And the spirit of the little local units should be that of courts-martial with, instead of a general-command-in-the-district, the whole of local public opinion to revise either decrees or sentences.
We must, in fact, restore to the individual a sense of power, for without that he cannot recover his sense of responsibility. And we must get rid of the elected professional politician to whom we give carte blanche to double-cross us over every legislative proceeding.
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You will say that that can never be brought about by the legislatives we have to-day. Certainly it can never be brought about by our present legislative procedure. It can only be brought about, let me repeat, by a changing of our own hearts. Against that no legislatures can stand up. It is not law-makers that have brought about the relative softening of penal laws down the centuries. If it had been left to the professional politicians we should still be drowning witches, burning heretics, hanging, drawing, and quartering starving thieves of halfpenny rolls. It has been the heavy and irresistible thrust of separated public opinions that have brought about these near-humanities. It is time that all our public opinions, united over areas vaster than any humanity has yet conceived of... it is time that they took in hand the sweetening of the world... the making it safe for children. I will venture to say that the mob at Flemington was the next best thing. It showed — if unconsciously — immense bodies of the citizens of this country unwilling to let Elected Authority pursue in a hidden corner its unworthy work. For myself I would have a crowd of a million attend on every trial for the theft of a shoe-lace. And they should tear down the court-house if they were dissatisfied with the mercy shown in the sentence. You would thus reverse Lynch Law.
