Journal of Criminal Law and Criminology Volume 31 Article 2 Issue 3 September-October Fall 1940 Hell and the Law Frank W. Grinnell Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Frank W. Grinnell, Hell and the Law, 31 Am. Inst. Crim. L. & Criminology 259 (1940-1941) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. "HE" AND THE LAW' Frank W. Grinnell' James Truslow Adams has referred found-which had been consecrated to absolute truth-rocked to its foundations to "the extraordinarily large sphere ac- by the seductive teachings of a clever corded to the Devil in Puritan theol- lady. He could not help regarding that ogy,"'3 The state of mind of the gov- woman as an enemy of God. As gover- nor he was bound to do his utmost to erning group in Colonial Massachusetts protect the Word and the state from this may be described as one in which the instrument of Satan, lest the whole peo- hands of primary consideration was to fight the ple suffer punishment at the the Almighty." Devil in the name of God, and this This was a point of view of enlightened absorbing contest required an inde- New England Puritans which resulted pendence in their minds which made in banishment to Rhode Island, problems of allegiance to the King and merely their relations to Parliament of second- but its genuine sincerity should be re- ary importance. Their religious sym- membered in connection with the bru- pathy in this contest with Satan was talities to be mentioned presently, a dominant associative principle which many of which were the results of com- held them together, and, in the words mon convictions equally sincere. of Mr. George E. Ellis, "so controlling When we consider the early dominant as a direct source of law was the Old conception of "Hell" in Christian the- Testament that the religious and polit- ology regardless of creed, for it was ical motives were identical" and can common to Catholic and Protestant not be separated. alike, long before and long after the An illuminating article by E. Reformation, I think we can see its Morgan Jr. appeared in the "New direct or indirect influence. This in- England Quarterly" for December, fluence appears on such matters as 1937, on, "The Case Against Anne penalties, the conduct of criminal'trials, Hutchinson." Referring to Governor the constitutional rights of accused per- Winthrop and his political conception sons, the so-called technicalities of the of the state and the duty of magistrates, criminal law (largely eliminated today Mr. Morgan says: but originally developed by judges as "He could not regard the case as that a humane protection against "hellish" of one opinion against another; it was punishment), the practice of jurors in personal opinion against truth. And the terrifying fact was that this personal refusing to convict (for the same rea- opinion was gaining ground; the Word son) in spite of their oaths which Black- of God was being undermined by a stone described as "pious.perjury," the woman. Winthrop saw the common- wealth which he had done much to rules of evidence (or the earlier lack 1 State Street, Boston, Mass. Editor, "Massa- 2A paper read before the Massachusetts His- chusetts Law Quarterly" and secretary Massa- torical Society. chusetts Bar Association. 3 "The Founding of New England," 82. [ 259 ] FRANK W. GRINNELL of them), and the common American bethan age when Shakespeare wrote conception of the weakened position the lines about "the quality of mercy," and function of the trial judge. and with two succeeding centuries; also Dean Pound has written of the in- with the period of the unrestrained fluence of the reputation of the "Bloody gaiety of the "Merry Monarch" follow- Jeffries," Chief Justice Sciroggs and ing the Restoration, and the more sober later of Lord Braxfield, the so-called settlement of New England by the Scotch "Jeffries," on the American Puritans. attitude toward the trial judge. The What were "civilized" Europeans, in- fairer modern practices have, as I see cluding Englishmen, not only tolerating, it, resulted not merely from a reaction but expecting, with general approval? against the brutal reputation of these The horrors of the Inquisition and the men, but from a widespread recogni- similar horror of the "fires of Smith- tion of "the quality of mercy" in the field," as well as other brutalities in the thinking and spiritual consciousness of name of God, are familiar history in people in general-a revival, perhaps, many books, notably in the chapters on of a hope of ultimate mercy expressed persecution by theologians in Lecky's by Origen, St. Clement of Alexandria 4 "Rationalism in Europe." But we will Christian theologians, and other early stick to secular practises, for the pres- and reflected, curiously enough, in the ent. A convenient collection appears in reign of Charles II, by Dryden, his William Andrews' "Bygone Punish- Poet Laureate, as well as later by ments." Boiling alive as a penalty for Goethe. poisoners was required for a few years "Hellish" Punishments in the time of Henry VIII., and not un- common before that. Pressing to death, Let us examine some of the symp- known as "Peine forte et dure" was a toms of the religious, social and politi- method of forcing a plea from an ac- cal state of mind in England during cused person so that his estates would several centuries in which honest error was regarded as an unpardonable and be forfeited, if found guilty. This form 1406 intolerable sin by most people regard- of procedure was substituted about less of creed or party. Of course, the for starvation as an act of mercy in natural resiliency of human nature al- order to relieve the accused of his suf- ways discounts and this underlies much ferings sooner! Major Strangeways human history), to some extent, the died under it to protect his family in excessive character of any prevailing 1676, as did a resident of Essex County, code of severity in thought and belief Massachusetts, during the witch-craft and keeps people out of the madhouse. craze. It gave way to thumb-twisting We must remember that we are dealing, in the eighteenth century, which was not with the brutality of primitive sav- not legally abolished in England until ages, but with the people of the Eliza- the act of 1827 directing the court to enter a plea, if a prisoner "stood mute." 4 Dearmer, 62, 81 and 84. "HELL" AND THE LAW Other forms of torture to force testi- bers be cut off, your entrails to be taken mony were common. out of your body and you living, the same to be burned before your eyes and The old sentence for treason sur- your head to be cut off your body to be viled until the early nineteenth cen- divided into four quarters and head and tury when Sir Samuel Romilly agita- quarters to be disposed of at the pleasure of the King's Majesty and the Lord have ted against it and drew upon himself mercy upon your soul." the odium of the law officers of the The court then adjourned until seven Crown, who declared he was "breaking o'clock the next morning and all jury- down the bulwarks of the constitu- men and witnesses were commanded to be present on forfeiture of £100 apiece. tion." This sentence was the end and 5 Howell's State Trials 1034. immediate object of a trial for treason Sir Henry Vane and Rev. Hugh during generations, when in times of Peters, both early New Englanders, excitement almost any unguarded ex- were similarly sentenced and executed.5 pression of opinion might be turned The first sentence of this kind is said into treason, especially with the aid of historic liars like Titus Oates. There to have been inflicted on a pirate in is an old print in the British Museum, 1241, and it was not until 1813 that a copy of which is in the Harvard Law Sir Samuel Romilly introduced a bill School, showing, in operation, the grue- to modify the sentence to hanging, and some details of this final act of a treason even then it met opposition. In the trial. Lord Coke, the oracle of the law debate he said: under the earlier Stuarts and the pro- "I certainly did not foresee that in an genitor of our Revolutionary argu- English House of Commons in the nine- teenth century, one voice would have ments, found, somewhere in the Bible, been heard in defence of a law which a countenance for each of the details requires the tearing out of the heart and of the sentence. What was it? bowels from a body of a human being, The first trial of the regicides was while he is yet alive, and burning them in his sight," (p. 253). that of Thomas Harrison before Lord, But this was not all-for corruption Chief Baron Sir Orlando Bridgman, of blood involving confiscation of previously a conveyancer, who, after estates, thus punishing the innocent the jury found the prisoner guilty, pro- nounced sentence as follows: relatives, continued until modified by Romilly's exertions. Hanging for merely "You that are the prisoner at the bar, you are to (receive) the sentence of passing a forged one-pound note was death, which sentence is this: The common until about 1817, when George judgment of this court is and the court Cruikshank ridiculed the Bank of Eng- doth award, that you be led back to the place from whence you came and from land with a cartoon which stopped the thence to be drawn upon a hurdle to the issue of such notes.