2. Death Penalty (Remastered)

The Death Penalty

R.J. Rushdoony

Exodus 21:12 then 23 following. Our subject, ‘The Death Penalty.’ Exodus 21:12 and 23 following.

Exodus 21:12

“He that smiteth a man, so that he die, shall be surely put to death.”

Exodus 21:23 and following.

“And if any mischief follow, then thou shalt give life for life, Eye for eye, tooth for tooth, hand for hand, foot for foot, Burning for burning, wound for wound, stripe for stripe. And if a man smite the eye of his servant, or the eye of his maid, that it perish; he shall let him go free for his eye’s sake. And if he smite out his manservant’s tooth, or his maidservant’s tooth; he shall let him go free for his tooth’s sake.

If an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit. But if the ox were wont to push with his horn in time past, and it hath been testified to his owner, and he hath not kept him in, but that he hath killed a man or a woman; the ox shall be stoned, and his owner also shall be put to death. If there be laid on him a sum of money, then he shall give for the ransom of his life whatsoever is laid upon him. Whether he have gored a son, or have gored a daughter, according to this judgment shall it be done unto him. If the ox shall push a manservant or a maidservant; he shall give unto their master thirty shekels of silver, and the ox shall be stoned. And if a man shall open a pit, or if a man shall dig a pit, and not cover it, and an ox or an ass fall therein; The owner of the pit shall make it good, and give money unto the owner of them; and the dead beast shall be his. And if one man’s ox hurt another’s, that he die; then they shall sell the live ox, and divide the money of it; and the dead ox also they shall divide. Or if it be known that the ox hath used to push in time past, and his owner hath not kept him in; he shall surely pay ox for ox; and the dead shall be his own.”

A man will act on his faith. If his faith be humanism, then a man will act out his humanistic presuppositions. He will then view the world not is God’s handiwork, but is his own. 

One of the more famous death of God theologians, William Hamilton, cited very proudly, not too long ago, an experience with his son:

“The other night I was out in the back-yard with one of my children who had to identify some constellations for his science homework.… My son is a full citizen of the modern world, and said to me, after he had located the required constellations, ‘Which are the ones we put up there, Dad?’ He had become a technological man, and this means something religiously.” ⁱ

Now, this boy was very logical. He had been brought up in a world without God, in a world in which God is replaced by man as God. And so, when he had identified the constellations for his homework, he naturally asked “Which ones did we put up there?” Man was now the maker. If God does not exist, then man is his own god, the world’s Lord and the world’s Maker. Moreover, if man is his own God, then man’s life is the highest value, and the greatest sin of all can be a sin against this god to take away his life. And this, of course, is the conclusion of our humanists. 

The playwright, Arthur Miller, once, among other things, a husband of Marilyn Monroe, declared:

“…life is God’s most precious gift; no principle, however glorious, may justify the taking of it.” ⁱⁱ

Life is the greatest value, and the worst sin is capital punishment, because it is the deliberate taking of life. Now, this point has been made repeatedly, for example the New York Herald Tribune on May 3rd, 1960, had a long editorial on the execution of Caryl Chessman here in California. And in the editorial, it is ready to grant that Caryl Chessman may have been guilty. But it goes on to say:

“The law should inculcate respect for life by itself respecting the sanctity of life. The state should not, as California did yesterday, put itself in the position of the errant father telling his wayward son, “Do as I say, not as I do.”

Death is final. It leaves no room for second thoughts, or for correction of the errors that are a mathematical certainty in a system of justice based on fallible human judgment. And the quintessential premeditation which judicial killing represents makes it more coldly vicious than a crime of passion.

The very concept of a death chamber is antithetical to the ideals of Western civilization.” ⁱⁱⁱ

So, the New York Herald Tribune said, the worse crime was not Chessman’s but of the State of California because of its cold-blooded killing. And it declared that the taking of life is alien to the ideals of western civilization. At that latter point, they were accurate if the ideals mean humanism, which they have become. Or, to quote someone still further, Howard Jones, an English sociologist at the University of Leicester, who writes in his book Crime in a Changing Society. And, of course, increasingly, the idea is that there is no such thing as crime or justice. Because, to presuppose the idea of justice, is to say that there is the idea or standard or a law above man. But if man is his own god, how can he have any law or justice above him? So, he says concerning justice:

“But could all this instead, perhaps be some kind of historical confidence trick? It has already been suggested that our idea of justice may be a rationalization of what is at bottom punitive behaviour. This would not be to argue that the idea of justice is a fake, but rather, that instead of taking it at face value, we might try to understand what needs it is intended to satisfy. It may appear then as a kind of collective psychological defence. As proof of the validity of our ideals, we are often inclined to refer to the sense of conviction that we and other people possess about them. Most of us certainly have strong convictions about the rightness of the ideal of justice. But all that a sense of conviction does is to prove its appropriateness for us: that in the present state of our emotional economy, such a belief has for us a very special and much needed part to play. But justice seen in this light is not merely the solvent of unrest within us; it is a positive outlet through which these tensions can be discharged in (as it seems to us) a constructive fashion. Through the idea of justice, the bad things within us are transformed into something new and worthwhile. All this, so long as we do not look too closely at the outcome. For to stand the famous phrase upon its head and thus perhaps give it more validity: justice may more often “manifestly appear to be done” than to be done in fact.” ^iv

In other words, according to this sociologist, justice is the way we have of projecting the evil within us. And so, we are the evildoers if anyone is in demanding justice against those we call ‘offenders.’ 

Now, again, his position is logical. If man’s life is the highest value and man is his own god, anything that harms it is the supreme evil, and there can be no ideal of law or justice above man because every god is above every law and is the source of whatever can be termed ‘law.’ We have, as Justice William O. Douglas of our Supreme Court has declared, now moved, in law, from the sovereignty of God to the sovereignty of the individual to the sovereignty of man. And so, he says, of those who still believe in God and demand law and order: “Law and order is the guiding star of the totalitarians, not of free men.” ^v And we who believe in God and these totalitarians.

He continues to say, “Revolution is therefore basic to our rights of man,” ^vi because, as he goes on to argue, man is above the law. We have, therefore, a religious war in progress. Not a shooting war exactly although it is in part; this is what the rioting is about in the streets, they are shooting at us, at our world of law and order. But it is a war between two religions; humanism and Christianity. And the death penalty brings it into focus.

Now, the death penalty is very, very early declared in Scripture. We meet it first in Genesis 9:5-6. As we have previously seen, the death penalty in Scripture is applied to a number of crimes; we will review some that we have not previously considered, including the fact that habitual criminals and incorrigible delinquents were to receive the death penalty. For other crimes there was to be restitution, except for minor crimes where there was to be corporal punishment; a beating. The prison system came into effect at the end of the eighteenth century and the last years, the last decade of the 1700’s. This is a fact that is admitted by very liberal commentators like Martin Mayer.

It was a humanistic device. Humanists, feeling sorry for a man, and being hostile to the whole system of restitution, felt that prison was a more humane method. Now, of course, they are attacking the prison system, their own answer, and are saying that psychiatric treatment, mental hospitals are the more humane system. So that their plan is to replace prisons now with mental hospitals. An increasingly the larger number of cases each year are referred to psychiatric courts. We do have psychiatric courts today. For example, there is one court in the city of Los Angeles which handles only those cases which are cases where the plea is to be not guilty by reason of some mental condition or other. 

But increasingly, this new method, this humanistic criminology, because it holds to an environmentalism, places the guilt not on the criminal but on the society. And so, it aims at the psychological reconditioning of all men. And this is, of course, what ‘sensitivity training’ is all about. Now, this environmentalism, this psychological and other reconditioning of all men finds its most logical statement in Marxism. It, of course, has its origins in evolution. 

Because evolution to some degree inevitably says that environment creates man. Lamarckianism stated this most openly. But even in Darwin with his modified Lamarckianism, because he did postulate that as the first species of life moved out of the slime, it was conditioned by its environment to make certain changes. This is why Marx and Engels both hailed Darwin’s book and said, “Now Communism is inevitable.” It was inevitable because the essence of Communism required evolution, and evolution once being a scientific fact ostensibly, then Communism, Marxism, was inescapable, calling for the total psychological reconditioning of man and society as the next step in evolution. 

Lincoln Steffens, the American Marxist, stated very clearly at a banquet once when he turned to the bishop who was at the speakers’ table beside him and said, “You blame the serpent for what happened in the Garden of Eden, but our position is that it was the apple’s fault.” It was the environment. 

Now, as we analyze the Biblical Law with regard to murder and the death penalty, one of the first things we note that, as our Scripture made clear, there is no ransom for murder. Murder requires the death penalty unless it is an accidental killing, but otherwise all murder requires the death penalty. The accidental killings that are referred to are things like two men working and ax head of one man breaking off and hitting the other man and killing him. If the man was not aware that the ax had any hidden flaw in it, or there was anything that would cause it to break suddenly, then he was not guilty, it was not murder. But murder, apart from that, required, without variation, the death penalty. This is clearly and unequivocally stated again and again in Scripture. 

Second, as is stated in Genesis as well as in the Mosaic law, animals as well as men can be guilty of murder and must die. So that, and the cited case is that of an ox, if an ox gores a man or a woman or a child, the ox dies. This, incidentally, is still a part of our law. But, if that ox or animal, whether it be a dog or bull or any kind, a billy goat, had a record previously of violence, of goring people or of threatening, and the owner had been informed of this and had done nothing about it, then the owner also is liable to the death penalty. In this case, a ransom or restitution can be made, a strict penalty can be enjoined. But apart from that, the animal is liable. 

Now, third, as we have seen from our Scripture, the principle is an eye for an eye, a tooth for a tooth, now that doesn’t mean literally that if you lose a tooth, you knock out a tooth from the other man. The idea is the punishment is proportionate to the crime. The penalty and the crime have to match, therefore, life for a life. Now, this has reference to the act, not to the state of mind. As long as there was a killing, the principle is, life for life, unless it were accidental. This applies to man, it applies to animals. 

This has tremendous repercussions, and has had for centuries, until about a hundred and twenty years ago. It meant that when a man was on trial, he was on trial for his act and his mental condition had no reference to it. Thus, the plea of, “Not guilty by reason of insanity,” is a modern one. It arose in 1843 in the trial of Daniel McNaughton, for the murder of Edward Drummond, secretary to Sir Robert Peel. It was a deliberate, a planned murder. However, it was ruled in this case that he was not guilty by reason of insanity, and the McNaughton rule was that every man is sane unless the contrary is proved, but a man who labors under a defective reason and does not realise the nature of his act at the time is not guilty by reason of insanity.

Now, this had tremendous repercussions. Immediately, a new kind of ground could be pleaded. A man could plead that he was so drunk at the time that he had no awareness of what he was doing, there was a defect of reason. A man could plead, therefore, that he blacked out at the time, and of course we’ve had endless pleas. And so, it became the burden of the court, then, when there was a plea of ‘not guilty by reason of insanity,’ although the rule had said he was sane unless otherwise proved, when the plea was, “Not guilty by reason of insanity,” there was a cloud; both to prove that he was insane, and to prove that he was not insane and the law at this point became very fuzzy. 

Then, in 1954, Judge David L. Bazelon in Washington DC, in the Durham Trial, the trial of Monte Durham, a housebreaker and a passer of bad checks, ruled, and this is known as the ‘Durham rule,’ that no one could be held criminally responsible if his unlawful act was the product of mental disease or mental defect. Now, this seems to be very little different from the McNaughton rule, but, with the expanding definition of mental disease or mental defect an alcoholic could be a person with a mental disease, it’s a sickness you see, not a moral responsibility. Or a man who has been criminal off and on throughout his life as Monte Durham had been, must be mentally unstable. After all, if he were not mentally unstable, why would he be involved in crime over and over again? Passing bad checks and breaking into houses, there obviously was a mental defect. 

And of course, this led to all kinds of peculiar decisions in various areas. For example, when I was in Nevada, there was a case where government agents had worked through a bureau to destroy a rancher who had stood in their way. The man fought it to the courts from the administrative courts, and it was ruled in his favor, but the government appealed to the Supreme Court. And the Supreme Court guaranteed the correctness of all the facts, but it said unless malice could be proven in the minds of these government officials, he had no case. In other words, crime no longer had reference to acts, but to mental condition.

This, of course, was the case with the Walker Libel Suit. General Walker was severely and savagely libelled in the University of Mississippi case. Acts, words, were attributed to him that were totally unrelated to reality. He had, in fact, attempted to restrain the students from violence and had pleaded with them. The reports were deliberately false; he sued and won. The statements were libellous to the extreme, as were the actions of the government in seizing him and making him a ward of a mental institution. The Supreme Court reversed it. You would have to prove, they said, that in the minds of the newspapers at the time there was a deliberate malice towards him. And if, of course, they say, there was no malice, how can you prove their mental condition was otherwise?

In other words, are disassociated from the mind of man, this is a schizophrenic position indeed, but it makes conviction increasingly impossible. It sets aside, of course, the ‘life for life’ principle of Scripture which is the principle of justice itself in favor of a humanistic concern for the life of the criminal. And yet, the irony of it is, those who are involved in crime now are finding that it’s a worse blot on their record when they leave a mental institution than when they leave a prison. So, the humanists are being hoist on their own petard. And yet, of course, the trend continues to destroy our present system of law entirely and replace it with psychiatric courts. 

Dr. Carl Menninger, the psychiatrist, has written a book, The Crime of Punishment in which he says that to demand punishment of any crime reveals us to be the really sick ones. We are the persons who are guilty, the worst criminals. And he goes on to say:

“I suspect that all the crimes committed by all the jailed criminals do not equal in total social damage that of the crimes committed against them.” ^vii

In other words, the greatest crimes are those of imprisoning these poor unhappy people, that all the crimes committed by all criminals are not equal to what we do. Moreover, he says:

“We need criminals to identify ourselves with, to envy secretly, and to punish stoutly. They do for us the forbidden, illegal things we wish to do and, like scapegoats of old, they bear the burdens of our displaced guilt and punishment—'the iniquities of us all.’” ^viii

And further, Menninger says:

“[T]he great sin by which we are all tempted is the wish to hurt others, and this sin must be avoided if we are to live and let live.” ^ix

In other words, we who hold to a Biblical standard are the worst, the most depraved criminals. I might add that Menninger’s book has been extremely well received and is having a powerful influence on both the courts and the public at large. At the 1968 American bar association one speaker suggested, and this was the tenor of the entire convention with the exception of one speaker; he urged that rioters be paid rather than punished because their work in rioting is so useful, socially, in calling the attention in society to the evils they are perpetrating. 

Ramsey Clark, who was one of the speakers at the same American bar association convention, went to Congress and called for an end to capital punishment in Federal crimes. This trend, of course, is not only in the United States, it is further along in Canada, in Britain, in continental Europe. In fact, in Germany today, there are unions which are recognized by the state being organized in the prisons to protect the rights of the convicts. It is no wonder then Earl Stanley Gardner has remarked:

“The rights of the individual are being protected, provided the individual has committed a crime.” ^x

What this modern humanistic doctrine is doing is to eliminate the doctrine of individual responsibility. This is the meaning of the plea ‘not guilty by reason of insanity.’ It eliminates individual responsibility and opens the door to social, to collective responsibility, to collective guilt. And of course, this is exactly what we’ve been subjected to, is it not? When Oswald shot President Kennedy, was there anything said about Oswald being a communist and individually guilty, or the communists guilty? No! We were told that we all should feel guilty. And this theme is increasingly stressed. Individual responsibility when it is denied is replaced with social, with collective responsibility, so that it is the innocent who are made out to be guilty.

The extent to which this is being carried is repulsive to the nth degree, but it is actually being stated now in rape cases that women are guilty, that these poor weak persons are inflamed, or that these women because they are white or well-dressed and attractive, make these criminals feel unwanted and humiliated, and so, to equalize the situation they have to strike back. This is seriously being advocated even in trials.

Take away the Biblical faith, and you take away the doctrine of individual responsibility. The other day, one woman from Saint Paul, Minnesota, a Mrs. John Connelly, a tourist here, attended the Sirhan hearings. She came out and said to a newspaper man:

“I think this poor fellow Sirhan is a very sad creature. It’s hard to imagine anyone who would be driven to something like this.” ^xi

And of course, this is the theory. This foolish woman reflects the whole of the modern humanistic sociology. A person is no longer responsible, they are driven. Driven by whom? By society, by the innocent. This is the logical conclusion of the plea, ‘not guilty by reason of insanity.’ The criminal act is replaced now by theory, by mental conditions, individual responsibility by social responsibility, and justice as we know it disappears.

But the death penalty is required in Scripture, required for a number of offences. We’ve discussed some of them previously, others apart from murder are incest, bestiality, homosexuality, most kinds of rape, offerings of human sacrifice, and, failing to restore the pledge or bailment. We shall deal with that at a later date. 

The removal of both faith and law has a serious effect on society. Many laws are enforced by their mere existence when a society has some semblance of order. An interesting example of this was a situation in New York City in the early 1920’s. The public library was having an enormous amount of theft. Books were stolen by children who were going to used bookstores and selling them. It was children because the money in it was small; they would make $0.25 - $0.50 a book or less. And so, a law was passed making it a criminal offense not only to do this but for anyone to buy or sell a book that had been stolen from the library. Immediately, all the used bookstores stopped buying them and the thefts ceased.

But this kind of thing happens more often, a law enforcing itself without any punishment or conviction ensuing, when you have a more stable society. But when you reach the point that we have today, the books are stolen not to be sold or enjoyed, but just to be destroyed. Thus, the new problem in New York and elsewhere is not that the books go from the library, but they are torn and destroyed in the library just out of sheer destructiveness. There is no longer any moral foundation in the society, and so there is a collapse. You need, therefore, both the law and the law structure and undergirding it the Christian faith that makes it both possible to enforce the law and to have people that will obey the law. 

Now of course, as we consider the death penalty, one of the questions that always comes up, and it is well to consider it now by way of conclusion, is that our Biblical system of law enforcement; death penalty, imprisonment, so often gets innocent people killed. That innocent people are always being executed or sent to prison. What are the facts? The reality is that as you go across the country and study the indictments and the consequent results of those indictments, that by and large our courts and our District Attorneys are so careful that an average of seventy to eighty percent indictments result in a guilty plea. In other words, the person indicted is so obviously guilty, that seventy to eighty percent of the persons who were indicted plead guilty.

Of the remaining twenty to thirty percent, most are convicted. Some are released, and this is especially true in rape cases, because of the unwillingness of the complaining party to go to court. A few are released because guilt is not proven. Our criminal courts rarely see innocent men, they do occasionally, but they rarely see innocent men! In New York city incidentally, and those of you who have ever gone to New York know that virtually all men wear hats there, if you don’t wear a hat in New York you’re obviously a tourist, and they’ll ask you where you’re from. They wear hats unless they’re a tourist or a criminal lawyer. Criminal lawyers cannot wear hats because they are inevitably stolen when they go to court. It is impossible for a criminal lawyer to go to court and put his hat down without having it stolen, because apart from the lawyers there are only criminals in the court awaiting a hearing. 

And so, they go to court, and they stand there with their coat over their arm and their briefcase in their hand because they do not dare put them down. This is not all. The clients of criminal attorneys not only are almost inevitably guilty, but they are given to defrauding the lawyers that they have. And so, across the country in the criminal court, there is a code word or a code statute — it’s a mythical one that the lawyer pleads if he has not yet gotten his money out of his client. He asks for a deferment on grounds so and so, and he names so and so, some technical word and a code number, and the judge knows he has not collected from his client. And so, he defers the trial until the lawyer can collect his fee. Because both the judge and the attorney and the prosecuting attorney know that the lawyer will starve if he doesn’t collect before the trial. 

Are we convicting innocent people? On the contrary. The courts, the defense attorneys, the prosecuting attorneys know that almost inevitably they are dealing with guilty men. There are innocent men convicted at times, and I’d like to cite one such case because we need to give a total picture. A very famous case, again from Nevada, the Dudley Boyle case from the depths of the depression. Boyle was a mining engineer, a graduate of the University of Nevada, a native of Goldfield. He had offended certain peoples. There was a bank robbery at the Bank of Sparks, and he was arrested. Over a month after the robbery of the Sparks bank, Boyle was identified by the bank personnel who had first declared that they could not possibly identify the masked robber who had been in the bank when the doors opened the morning of the robbery. 

Now the trial was taken by Pat McCarran, a much-vilified man but a great Senator. And this is the kind of thing that McCarran faced in that trial. 

“One of the most unique devices used by the prosecution was that the State called to the witness stand the one man who could prove Dudley Boyle’s alibi—that he had left Reno early on the morning of the robbery and journeyed by automobile to Goldfield. Summerfield elicited the man’s name and address and then dismissed him from the stand. Thereafter, McCarran, continually overruled by Judge George Bartlett, was unable to cross-examine the man, or elicit from him the confirmation of Boyle’s alibi. This would be unbelievable if it were mere news reporting. The transcript is available. Even on appeal, Judge Edward A. Ducker, who had succeeded McCarran on the Supreme Court, handed down a terribly facile decision against Boyle, who had been sentenced from five to twenty years in the State Prison. He was released after six years and subsequently, committed suicide. When he had been working for parole, Boyle had written to McCarran: ‘You know and I know that I am innocent.’ This was, unfortunately in the depth of the Depression when everyone was desperately distracted. There was much to suggest that when the owner of the Bank of Sparks desired a conviction, it could be obtained.” ^xii

There were several other cases where the defence of friends of the bank owner was paid for by him. Now, there’s no denying that cases like this exist; one of the most famous cases in the United States is the case of Dr. Cook, who probably was the real discoverer of the North Pole. Several books lately have confirmed that. He was denied this because a military man also claimed to get there and got there some time after he did, Admiral Perry. He was viciously slandered, then when he went into business he was arrested and convicted, sentenced to prison on a charge of fraud, although it was known all the while that the oil company he represented was fabulously rich, and there was no fraud, in fact, everyone was going to profit highly by it.

Now I cite these cases not because they are common, but because I want to give a rounded picture. It is important for us to realise that the law is fallible. We do have fallible, sinful, men. But the fact still remains in the face of all of this, and certainly our courts are at their worst today, most of the men indicted are still guilty. And there can be no injustice greater than that of destroying law and order because occasionally innocent men suffer. 

Dudley Boyle did suffer, Dr. Cook did suffer, unjustly, but shall we therefore do away with the best system of justice, Biblical justice, the world can know? Shall we destroy the courts because they are not perfect? On the contrary, we need to work to both improve law and order, and to reestablish the foundation of faith which is necessary to undergird law and order. And this is our major problem. Several weeks ago, I cited the fact that in Berkeley the police are finding it impossible to cope with the problem of narcotics. On a single Saturday night there was by two thousand pot parties going on, and you have an informer or policeman at each one? And the answer, of course, is “no.”

But even more significant, the problem with respect to juvenile delinquency. Five years ago, the situation was serious enough. One-ninth of all the juveniles in all the United States have had some kind of experience with the courts, one-ninth! And that does not include those whose parents intervened and made restitution and prevented the matter from going to court. One sixth of all boys, juveniles, have been in the courts. And the situation today is far worse than it was five years ago. 

It means that we are facing a situation of anarchy. We need law and order. But men act out their faith, and when the faith of men is humanistic, we are going to have a world of anarchy and tyranny! And these juveniles are acting out the faith which they are taught in the public schools. The results should not be a surprise. 

Except the Lord build the house, they labour in vain that build it: ^xiii

Let us pray. 

* * *

Our Lord and our God, we give thanks unto thee that thou art on the throne, that the government is upon thy shoulders. And we come to thee, O sovereign one, beseeching thee to make use of us unto the end that thy Word may again prevail on the councils of state, that the kingdoms of this world might become the kingdoms of our Lord and of His Christ. Make us ever bold and confident as we face the powers of darkness, knowing that if thou art for us, then who can be against us? O Lord our God, establish thy Word, manifest thy saving power, and use us to thy praise and glory. In Jesus' name. Amen.

* * *

Yes?

[Audience member] What is the state of capital punishment in the Soviet Union? How does ‘turning the other cheek’ fit in with this?^xiv

[Rushdoony] With respect to the Soviet Union and the death penalty, the death penalty was abolished by the communists because, as humanists, they were supposedly in favor of life. It has been restored for certain offenses, crimes against the state. But the irony of the situation is that the Soviet Union, which has killed more people than any power in all history, has done it ostensibly without the death penalty and supposedly protecting life. 

Second, with regard to turning the other cheek, this has reference to personal offenses and in situations where we as individuals cannot take the law in our hands and must not. We’ve gone into that previously and our time is short, so I don’t want to take extra time. 

Yes?

[Audience member] Why was Joseph in prison for such a long time?

[Rushdoony] Yes, but not imprisonment in our terms where you’re sentenced to prison for a term, you see. There were prisons in the times of the kings and the Bible, but it was a place to hold someone in custody either pending execution or pending a trial. Now, in Joseph’s case, why was he imprisoned for so long a time? Well, he was imprisoned for attempted rape. It was a false charge, but he was imprisoned for attempted rape. The punishment for that was death. So Potiphar sent him there, supposedly to be executed. But Potiphar, who was a Captain of the Guard and obviously in charge of some of the prisoners at least and possibly that one, was faced with this situation. Joseph had been his right-hand man and he had trusted him. He didn’t want to quarrel with his wife by saying, “You’re a liar, and I’m suspicious,” so to prison Joseph went to be executed. But, he didn’t enforce the sentence, so Joseph simply stayed there with an unexecuted sentence. And you remember the others who were imprisoned; one was executed, and the other was released. So, it was a place where only a temporary custody awaiting trial or execution.

[Audience member] So, Potiphar suspected his wife’s accusation was bogus. Maybe he told the jailer that this was the case on the down low? ^xv

[Rushdoony] Right, because obviously he knew from Potiphar, “This man is here because I just put him in here. I don’t want to quarrel with my wife, I can’t tell her she’s a liar and take the word of a slave.” So, Joseph was imprisoned in a sense in a privileged status, although he was a slave and a prisoner. But by all Egyptian law, he should have been executed; that was the penalty for his supposed offence, particularly on the part of the slave. 

[Audience member] So the prison would have a steady stream of people going through it; for release or for execution? ^xvi

[Rushdoony] Oh yes. There would be a continual flow of people. You see there were prisons, but not prison terms. People would come and go come and go in terms of whether they were released or forced to make restitution or were executed. But when there was an arrest, they were imprisoned pending trial. But it’s the idea of the prison as a punishment, as a sentence, this is modern. But you did have prisons throughout the centuries. 

Whenever a person was held indefinitely in prison, and you had that through the centuries, it was illegally, it was not in terms of a sentence. It was simply because in violation of the law or disregard of it, they were holding him for some personal reason or other.

Yes?

[Audience member] Prisons are no longer called ‘prisons,’ they are ‘penitentiaries’ or some other such thing. ^xvii

[Rushdoony] Very good point. From a prison, the word has gone to penitentiary, penitential plate, to ‘correctional facility.’

Yes?

[Audience member] There seems to be a move away from local law to Federal law. ^xviii

[Rushdoony] Of course, historically our law has been local law. The County enforces criminal law. Our District Attorneys are still prosecutors of all crimes for the people of the County, but the Federal government has been anxious to get in here; European and totalitarian-style, and this has been a way of intervening, a stepping in and pre emptying an area of law. And little by little this will be extended. But there is no reason why the Federal government should punish the assassin of a President rather than the County. The County should do it. And I think the County can do it more effectively. I do not feel that the Federal interference in the Ruby Trial did anything but confuse the issue because they intervened to say, “This or that can be brought into the trial and this or that cannot be brought up,” so that the Federal government with its intervention has only hurt the situation. 

Yes? Last question... 

[Audience member] What of St. Paul’s imprisonment, then? ^xix

He was, Paul was, imprisoned pending trial. That was all. 

Actually, with Paul they knew that they could not go to court and have anything against him, so that you remember from the book of Acts, they planned between prison and court to have him assassinated. There was no way of convicting him of anything, so assassination was the plan. 

Our time is really more than up, but one word more, a question has been raised on the monetary situation. Well, it’s hard to say much right now, just before the inauguration, because that’s going to make so great a difference as to what happens with regard to gold and silver. And at this point there’s no way of knowing what the Nixon administration will do. 

My guess is that they will prefer to do nothing because they will be afraid of precipitating a crisis and therefore will wait for a crisis before they move. Meanwhile of course, the price of gold has been etching up; it reached an all-time high during the past week and then dropped back just a little. The coins, of course, have moved up steadily. A $20.00 gold piece as of Thursday went to $77.00. 

So, it is no longer going up $0.50 to $1.00 it is going up $3.00 to $6.00 at a time. Meanwhile of course, the counterfeiting there is enormous. The one source that has been good has been the Swiss banks, because they are so extremely careful that they would prefer to reject good coins rather than be fooled. The main source of the counterfeit coins today is Canada. The bank of Canada itself very quietly admitted recently that much of what they’ve been selling over the counter has been counterfeit because they were trusting and had not taken the precautions the Swiss banks do. Now, these counterfeits are the same weight gold, they are 900 fineness, but they are still counterfeit.

The dealers who selling them are buying them markedly cheaper and are selling them at the same price or a little less. But this is making things difficult; we will probably have this situation with us until the price of gold is raised, and it is no longer as profitable to counterfeit. But at the present it is a very, very flagrant situation and the reputable dealers are only buying from Switzerland and examining every coin, which makes it very difficult. But meanwhile, the price is edging up.

i. Cited from William Hamilton, “The Death of God,” Playboy, vol. 13, no. 8 (August, 1966), p. 138; by John Charles Cooper, The Roots of the Radical Theology (Philadelphia: Westminster Press, 1967), p. 137.

ii. Cited from The Collected Plays of Arthur Miller (Viking Press, 1957), p. 320, “The Crucible,” by J. C. Cooper, Roots of the Radical Theology, p. 143. Miller cites God only to eliminate Him.

iii. Cited in John Laurence, A History of Capital Punishment (New York: The Citadel Press, 1960), p. xxv f.

iv. Howard Jones, Crime in a Changing Society (Baltimore: Penguin, 1965), p. 91 f.

v. Justice William O. Douglas, “Civil Liberties: The Crucial Issue” in Playboy, vol. 16, no. 1 (January, 1969), p. 93 f.

vi. Justice William O. Douglas, “Civil Liberties: The Crucial Issue” in Playboy, vol. 16, no. 1 (January, 1969), p. 120.

vii. Cited by Robert Kirsch, “The Book Report, Psychiatrist Analyzes Crime and Punishment in U.S.,” in Los Angeles Times, Part IV (Thursday, December 12, 1968), p. 6.

viii. Menninger, in Saturday Review, p. 22.

ix. Menninger, in Saturday Review, p. 22.

x. Earle Stanley Gardner, “Crime in the Streets,” This Week Magazine (August 18, 1968), p. 4.

xi. Myrna Oliver, “Sirhan Intrigues the Curious,” in Los Angeles Herald-Examiner (Friday, January 10, 1969), p. A-3.

xii. Sister Margaret Patricia McCarran, “Patrick Anthony McCarran,” in Nevada Historical Society Quarterly, Fall-Winter, 1968, vol. XI, no. 3–4, p. 28 f.

xiii. The Holy Bible: King James Version, Electronic Edition of the 1900 Authorized Version. (Bellingham, WA: Logos Research Systems, Inc., 2009), Ps 127:1.

xiv.  Question added/modified for clarity and brevity.

xv.  Question added/modified for clarity and brevity.

xvi.  Question added/modified for clarity and brevity.

xvii.  Question added/modified for clarity and brevity.

xviii.  Question added/modified for clarity and brevity.

xix.  Question added/modified for clarity and brevity.