[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....