“I am da Law”

[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....

[The Might]

Well my eternal fascination for small folk has helped me find another quote...
As I was reading The Ride of the Rohirrim I found another quote suggesting treason could be punished with death, and as already very well explained by Boromir88, oathbreaking:

Ghân-buri-Ghân will not lead you into trap. He will go himself with father of horse-men, and if he leads you wrong, you will kill him.
So be it! said Theoden

And the same is shown by Gandalf's words to the Dwarves in the Hobbit:

Beorn is not as far off as you seem to think, and you had better keep your promises anyway, for he is a bad enemy. Mr. Baggins' eyes are sharper than yours, if you have not seen each night after dark a great bear going along with us or sitting far of in the moon watching our camps. Not only to guard you and guide you, but to keep an eye on the ponies too. Beorn may be your friend, but he loves his animals as his children. You do not guess what kindness he has shown you in letting dwarves ride them so far and so fast, nor what would happen to you, if you tried to take them into the forest.

The Elves were kinder, as shown by the decision of Thranduil:

It is a crime to wander in my realm without leave. Do you forget that you were in my kingdom, using the road that my people made? Did you not three times pursue and trouble my people in the forest and rouse the spiders with your riot and clamour? After all the disturbance you have made I have a right to know what brings you here, and if you will not tell me now, I will keep you all in prison until you have learned sense and manners!

So it seems that the Wood-elves had a system of laws, giving the king the right to hold strangers prisoners.

[Legate of Amon Lanc]

A really interesting thread and very interesting thoughts, unfortunately I came a little bit late and now I can't think of anything I might add. Perhaps later Only one thing to that thing with Thranduil you mentioned:

Originally Posted by The Might

So it seems that the Wood-elves had a system of laws, giving the king the right to hold strangers prisoners.

I find it likely that the Wood-elves didn't need to have a system of laws (like a written codex or just tradition - but I'm not saying they didn't have) from what you quote here - I think that the king of Wood-elves has the right to decide what to do with the prisoners just because he is the king. And when Thranduil says "I have the right", he, in my opinion, does not mean "the law gives me the right to..." but just "because you made so much of a mess in here, you should tell me what's up!" A little bit aggressively, maybe, but not from position of law, but from a position of someone who sees a stranger parking a car on his new-mown lawn.

[The Might]

I remembered about a very clearly defined system of laws in Middle-earth: in the Shire, after Saruman gained control of it.
The rules were very clear, and Sharkey made sure everyone knew them and respected them. Those that had the courage to oppose him suffered severe punishments such as imprisonment or physical punishments. The ruffians were pretty dangerous men, so most of the Hobbits respected the rules, but we have some accounts of some who didn't and that paid the price.
Shortly after the New Year of 3019, Lotho proclaimed himself Chief Shirriff. An ever-growing list of Rules were imposed on the Hobbits of the Shire, and those who disobeyed were sent to the Lockholes. Shirriff-houses were built in many villages and the number of Shiriffis was increased to enforce the Rules. Food and other goods were gathered for central distribution, but the Hobbits got short shrift. Beer and pipe-weed were reserved for the Chief's Men and inns were closed.
Lotho might be the victim of a capital punishment, perhaps because he also opposed Saruman once he came to the Shire and his men started destroying and burning homes, trees, and farmland...this is however unclear.

[Legate of Amon Lanc]

Good point, TM! In this, I believe, Tolkien showed explicitely the misuse (or: "overuse") of laws to ill. I think the Shire was also a nice example, in minor, of how Saruman turned from intentions "for greater good" using wrong ways, to total destruction. I think this is also one of the options how "law" (later turning to unjust rule) is taken in Middle-Earth, so I think it's quite good for the topic to remember that.
This is what Saruman told to Gandalf before imprisoning him in Orthanc:

We can bide our time, we can keep our thoughts in our hearts, deploring maybe evils done by the way, but approving the high and ultimate purpose: Knowledge, Rule, Order; all the things that we have so far striven in vain to accomplish, hindered rather than helped by our weak or idle friends. There need not be, there would not be, any real change in our designs, only in our means."

This is why the Istari were not given the right to use their powers in open. This is why Valar didn't want to force the Elves to go to Aman (and as we know, they considered their first war as "fault"). This is why the evil, many times, was not punished (Gollum!) even though it should be, by the law. This is why the Ring should not be used by anyone: not by Gandalf, not by Galadriel, not by the Lords of Minas Tirith. Saruman, in the beginning, had good intentions in mind - Knowledge, Rule, Order (although at the moment he speaks about this in the book, his intentions were already different). But the Shire shows the end of the road of ill-used "law": the Shire was a nice place where there were almost no laws, but everything went just fine because of the people, so said, "had the law in themselves". As some of you said before, I couldn't imagine a Hobbit killing another one - and it is indeed said, by Frodo in the Scouring of the Shire:

No hobbit has ever killed another on purpose in the Shire, and it is not to begin now.

And this is not just about killing. You can see even from the behavior of the Hobbits in LotR (be it Frodo, Sam, Merry&Pippin or the others in the Shire, well maybe with a few exceptions - like the Sackville-Bagginses, which are said to be "corrupted by Saruman", but even though, not actually wicked like for example Bill Ferny) that these folks were all friendly, sensible, caring for others rather than just for themselves. As Gandalf says in the UT, Appendix to the "Quest of Erebor", concerning the Hobbit behavior during the Long Winter:

"And then there was the Shire-folk. I began to have a warm place in my heart for them in the Long Winter, which none of you can remember. They were very hard put to it then: one of the worst pinches they have been in, dying of cold, and starving in the dreadful dearth that followed. But that was the time to see their courage, and their pity one for another. It was by their pity as much as by their tough uncomplaining courage that they survived."

(emphasize by me)

So this is quite different taking of law. The Hobbits had no need of laws, and look what the laws did there - it ruined them. These laws were there where they were not needed, so that the freedom totally disappeared and the folks had nothing they could do - so instead of building, the destruction took place. So, we have the places where the law was needed and was not (the Orc, I think, are a nice example for this), but we can also see, how the nonlawful law turned out to be destructible - and in the end, the extreme is again Mordor.

[Lalwendë]

Elves did use capital punishment. Eol is thrown from the walls of Gondolin as punishment. Though its one I often think was mistaken - surely locking him up would have been more fitting? Humane? An elf driven mad by his wife running away? Anyway, the results of it are quite far reaching as Tolkien shows!

I like what Child says, she picks up on a major theme on Tolkien's work, that we may have the 'right' to do something, but is it always the 'right' thing to exercise that right? The words of Gandalf remind us that life is precious, but there are also several instances where someone who has committed terrible wrongs is given a chance of forgiveness or clemency. Grima is given this by Theoden, and Saruman by Gandalf. Had Tolkien's world really been the medieval world then there would have been no question in cases such as theirs, they would have been executed in the most gruesome manner. Traitors were routinely subject to being Hung, Drawn and Quartered (hung until not quite dead, then their skin flayed from them and their body eviscerated and cut into quarters, all while still alive). Oath breakers in Northern society may have had the Blood Eagle enacted on them - being cut open and then spread out, pinned to a wall or tree until they died.

I don't think there's any question Tolkien will not have known about medieval 'justice' due to his reading and knowledge, but we don't see any of these punishments in his work, unless it is something done by the 'bad guys'. The possibility of capital punishment exists in the West, but we rarely see it used, instead we see leaders choosing not to use it, as though Tolkien makes a statement about their sense of fairplay and justice. Of course Theoden must dismiss Hama from his post, he has not carried out orders; this would be exactly the same in the modern world. But he has the sense of justice not to put the man to death.

You could compare Beregond deserting his post with the deserters of WWI. These poor men were shot at dawn; some still remain unpardoned even though we live in more enlightened times. Tolkien will have known about these cases. Beregond deserts, and according to the ancient laws of Gondor, he could be put to death for this. But Aragorn chooses not to do that. He makes sure that Beregond is 'punished', albeit in a symbolic way, by dismissing him from his post; it's 'symbolic' because in reality all that happens is he is reposted.