06/09/2007 06:35 pm ET | Updated May 25, 2011

Pardon My Obsession, Scooter Libby

A lot of water has gone over the dam, much of it blood tinged since George W. Bush first swore to preserve and protect the Constitution. Given the gravity of other issues, it's baffling why so many people spend any energy thinking about Scooter Libby's pardon. I'm particularly obsessed by it, how it stands for the essence of Bush and Cheney and their loyal friends -- probably because of the tragic plot twist -- how easily they all could have done otherwise. In real Greek Tragedy the hero is trapped by Fate and could not have done otherwise. Maybe that's why the Pardon as we no longer think of it came into being. Consider the case of Regina versus Dudley and Stevens -- now there was a pardon worth obsessing about.

On July 5, 1884, a storm sank an English vessel a thousand miles off the Cape of Good Hope. Cast away upon the high seas in an open boat were three men and a boy. The captain was Thomas Dudley; Edward Stephens was the first mate; there was an able-bodied seaman named Brooks; and the cabin boy was Richard Parker. They had no food except two tins of turnips and a small turtle they captured and only the little water they were able to catch in their oilskins from passing rainstorms.

On the twentieth day of their ordeal, they had been many days without food or water, and the cabin boy was quite weak and delirious from drinking sea water. Captain Dudley proposed the sacrifice of the boy so the others might live. Seaman Brooks demurred but first mate Stephens assented, and on July 25, Dudley prayed God's forgiveness lest the act were rash and put a knife into the boy's throat. The three men survived by feeding upon his remains until a passing ship rescued them. They were found four days later "...still alive but in the lowest state of prostration."

Brought before the highest court in England, Dudley and Stephens pled not guilty of murder by reason of "necessity," an extension of the principle of self-defense: In a hypothetical case, Lord Bacon once held that it would be blameless for one drowning man to kick another off a plank buoyant enough for only one person. Moreover, the Defence argued, intent is crucial in the crime of murder. The prisoners' sole intent was to preserve their own lives.

Irrelevant, argued the Crown. If Parker had food in his possession and they had taken it, this would have been theft; had they killed him in the process, it were murder. The Queen's Bench recessed for four days to decide the case, and Victorian England, obsessed, awaited the verdict.

"There is no safe path for judges to tread but to ascertain the law to the best of their ability and to declare it according to their judgment," said John Duke Lord Coleridge, ruling for the Queen's Bench, and " any case the law appears too severe on individuals [we] leave it to the Sovereign to exercise that prerogative of mercy...intrusted to the hands fittest to dispense it."

The chief justice overruled Lord Bacon's opinion on the two drowning men on a plank, saying, "Lord Bacon was great even as a lawyer; but it is permissible to much smaller men, relying on principle to question the soundness of his dictum." While the principle of self defense may encompass one man's killing a second to prevent him from murdering a third person, self defense does not justify killing an innocent bystander to save oneself. According to ancient principles, one ". . .ought rather to die himself than kill an innocent. . . ."

Dudley and Stephens were ". . .subject to terrible temptation, to suffering which might break down the bodily power of the strongest man, and try the conscience of the best. . . . But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence....To preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man's duty not to live, but to die...."

In refusing to admit temptation to be an excuse, Lord Coleridge said nonetheless, " is not forgotten how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it.... It is therefore our duty to declare that the prisoners' act in this case was wilful murder." He proceeded to pass sentence of death upon Dudley and Stephens.

Cited in every basic criminal law text (Queen's Bench Division 14: 1884; 273-288), Lord Coleridge's majestic prose, magnificent and humane, draws the finest of legal lines between justice and human nature, between freedom of the will and the overwhelming pressure of fate. The opinion plumbed the depths of the philosophical conflict between did and "could have done otherwise." So even the self-sufficing Victorians pulled back from the edge: the Queen promptly commuted the sentence to six month's imprisonment.