Chapter VII: Customs and Laws as Expressions of Moral Ideas (2)

The injured party may be too weak, or otherwise unable, to avenge himself. His readiest course, then, is to appeal to the chief for help. The chief, on his part, has an interest in interfering--he may of course expect a handsome reward for his assistance,[83]--and, in so far as the community at large wishes that the offender shall suffer, the chief may even be bound to interfere. Thus in the Sandwich Islands, the family or the friends of an injured person--who in cases of assault or murder were by common consent justified in taking revenge--used to appeal to the chief of the district or to the king, when they were too weak to attack the offender themselves.[84] Among the Wanyoro, according to Emin Pasha, should the murderer escape, the nearest relatives of the murdered man apply to the chief of the tribe to procure the punishment of the culprit.[85] The Indians of Brazil, when offended, sometimes bring their cause before the chief; but they do it seldom, since they consider it disgraceful for a man not to be able to avenge himself.[86] The judicial authority granted to the Basuto chief "also insures justice to foreigners, and to individuals who, having no relations, are deprived of their natural defenders and avengers."[87] In ancient Greece, in early times, special care was taken by the State for the protection of the weak and helpless, who otherwise had been unavenged.[88] In the Middle Ages, the {181} poor and the weak were placed under the King's protection; the intervention of royal justice, as Du Boys observes, "apparaissait comme un bienfait pour les faibles et un secours pour les opprimés."[89]

[Footnote 83: Steinmetz, _Rechtsverhältnisse_, p. 311. _Cf._ Brunner, _Deutsche Rechtsgeschichte_, i. 165.]

[Footnote 84: Ellis, _Tour through Hawaii_, p. 429.]

[Footnote 85: _Emin Pasha in Central Africa_, p. 86.]

[Footnote 86: von Martius, _op. cit._ i. 132.]

[Footnote 87: Casalis, _op. cit._ p. 226.]

[Footnote 88: Leist, _Græco-italische Rechtsgeschichte_, p. 372.]

[Footnote 89: **Du Boys, _Histoire du droit criminel de l'Espagne_, p. 237.]

Whilst resentment on behalf of injuries inflicted upon persons who are unable to avenge themselves has thus, to some extent, contributed towards the establishment of a central judicial and executive authority, the sympathy naturally felt for the object of an improper and immoderate revenge undoubtedly tended to bring about a similar result. The same feeling which checked indiscriminate revenge by establishing the rule of strict equivalence, restricted it once more, and in a more effective way, by referring the case to a judge who was less partial, and more discriminate, than the sufferer himself or his friends. Speaking of the feuds of the Teutons, Kemble remarks, "Setting aside the loss to the whole community which may arise from private feud, the moral sense of men may be shocked by its results: an individual's own estimate of the satisfaction necessary to atone for the injury done to him, may lead to the commission of a wrong on his part, greater than any he hath suffered; nor can the strict rule of 'an eye for an eye, and a tooth for a tooth,' be applied where the exaction of the penalty depends upon the measure of force between appellant and defender."[90] In the Island of Bali the judge steps in between the prosecutor and the person whom he pursues, "so as to restrain the indiscriminate animosity of the one, and to determine the criminality of the other."[91] Crawfurd, in his account of native customs in the Malay Archipelago, says that "the law even expressly interdicts all interference when there appears a character of fairness in the quarrel."[92] A Karen, we are told, always thinks himself right in taking the law into his own hands, this being the custom of the country, and "he is never interfered with, unless he is guilty of some {182} act contrary to Karen ideas of propriety, when the elders and the villagers interfere and exercise a check upon him."[93] Among the Basutos the authority of the chief is stated to be "sufficiently respected to protect criminated persons, until their cases have been lawfully examined."[94] Among the Californian Gallinomero the avenger of blood has his option between money and the murderer's life; "but he does not seem to be allowed to wreak on him a personal and irresponsible vengeance," the chief taking the criminal and executing the punishment.[95]

[Footnote 90: Kemble, _Saxons in England_, i. 268 _sq._]

[Footnote 91: Raffles, _History of Java_, ii. p. ccxxxvii.]

[Footnote 92: Crawfurd, _History of the Indian Archipelago_, iii. 120.]

[Footnote 93: Mason, in _Jour. Asiatic Soc. Bengal_, xxxvii. pt. li. 145. _Cf._ MacMahon, _Far Cathay and Farther India_, p. 188.]

[Footnote 94: Casalis, _op. cit._ p. 226.]

[Footnote 95: Powers, _Tribes of California_, p. 177.]

Besides the desire that the offender shall suffer and the desire that his suffering shall correspond to his guilt, there is a third factor of importance which has contributed to the substitution of punishment for revenge and to the rise of a judicial organisation. For every society it is a matter of great consequence that there should be peace between its various members. Though the system of revenge helps to keep down crime,[96] it also has a tendency to cause disturbance and destruction. Any act of vengeance which goes beyond the limits fixed by custom is apt to call forth retaliation in return. Among the Ossetes, says Baron von Haxthausen, "if the retaliation does not exceed the original injury the affair terminates; but if the wound given is greater than the one received, the feud begins afresh from the other side."[97] The custom of blood-revenge certainly does not imply that the avenger of unjustifiable homicide may himself be a proper object of retaliation;[98] but in the absence of a tribunal it may be {183} no easy thing to decide the question of guilt, and, besides, the dictate of custom may be overruled by passion. As a matter of fact, the blood-feud often consists of a whole series of murders, the revenge itself calling forth a new act of redress, and so on, until the state or hostility may become more or less permanent.[99] In the long run this will prove injurious both to the families implicated in the feud and to society as a whole, and some method of putting a stop to the feud will readily be adopted. One such method is to substitute the payment of blood-money for revenge; another is to submit the cause to an authority invested with judicatory power. Casalis tells us that the Basutos are often heard to say, "If we were to revenge ourselves, the town or community would soon be dispersed"; and he adds that the instinctive fear of the disorders that might arise from the exercise of individual law has induced them to allow the chief of the tribe a certain right over the person of every member of the community.[100]

[Footnote 96: Taylor, _Te Ika a Maui_, p. 96 (Maori). Im Thurn, _op. cit._ pp. 213, 330 (Guiana Indians). Burckhardt, _Bedouins and Wahábys_, p. 84, _sq._; Blunt, _Bedouins of the Euphrates_, ii. 207; Layard, _Discoveries in the Ruins of Nineveh and Babylon_, p. 305 _sq._ (Bedouins). Kohl, _Reise nach Istrien_, i. 409 _sq._ (Montenegrines). Stephen, _History of the Criminal Law of England_, i. 60 (Anglo-Saxons). Nordström, _Svenska samhälls-författningens historia_, ii. 228 (ancient Scandinavians). Steinmetz, _Ethnol. Studien zur ersten Entwicklung der Strafe_, ii. 125 _sqq._]

[Footnote 97: von Haxthausen, _Transcaucasia_, p. 411.]

[Footnote 98: Among the aborigines of Western Victoria, when life has been taken for life, the feud is ended (Dawson, _op. cit._ p. 70). Among the Greenlanders, if the victim of revenge "be a notorious offender, or hated for his bloody deeds, or if he have no relations, the matter rests"; but more frequently the act of vengeance costs the avenger himself his life (Cranz, _op. cit._ i. 178). Among the Bedouins, "if the family of the man killed should in revenge kill two of the homicide's family, the latter retaliate by the death of one. If one only be killed, the affair rests there and all is quiet; but the quarrel is soon revived by hatred and revenge" (Burckhardt, _Bedouins and Wahábys_, p. 86). In his book, _Das Leben der vorislâmischen Beduinen_, Dr. Jacob likewise observes (p. 144):--"Irrtümlich ist die Ansicht, dass Blut immer neues Blut fordere. Was für einen Getödteten ein Anderer erschlagen, so galt die Sache in der Regel damit für erledigt und abgetan." _Cf._ Achelis, _Moderne Völkerkunde_, p. 407, n. 1.]

[Footnote 99: Nelson, 'Eskimo about Bering Strait,' in _Ann. Rep. Bur. Ethn._ xviii. 293. Miklosich. 'Blutrache bei den Slaven,' in _Denkschriften d. kaiserl. Akademie d. Wissensch. Phil.-hist. Classe_, Vienna, xxxvi. 132; &c.]

[Footnote 100: Casalis, _op. cit._ p. 225. _Cf._ Boyle, _Adventures among the Dyaks of Borneo_, p. 217; Marsden, _op. cit._ p. 249 _sq._ (Rejangs).]

As may be expected, it is only by slow degrees that revenge has yielded to punishment, and the private avenger has been succeeded by the judge and the public executioner of his sentence. Among many savages the chief is said to have nothing whatever to do with jurisdiction.[101] Among {184} others he acts merely as an adviser, or is appealed to as an arbiter;[102] or the injured party may choose between avenging himself and appealing to the chief for redress;[103] or the judicial power with which the chief is invested is stated to be more nominal than real.[104] It is also interesting to note that in several cases the injured party or the accuser acts as executioner, but not as judge.

[Footnote 101: Keating, _Expedition to the Source of St. Peter's River_, i. 123 (Potawatomis). Richardson, _Arctic Searching Expedition_, ii. 27 (Chippewyans), Carver, _Travels_, p. 259 (Naudowessies). Dobrizhoffer, _Account of the Abipones_, ii. 163; &c.]

[Footnote 102: Lewis and Clarke, _Travels to the Source of the Missouri River_, p. 306 _sq._ (Shoshones). Powers, _Tribes of California_, p. 45 (Karok and Yurok). Dunbar, 'Pawnee Indians' in _Magazine of American History_, iv. 261. Arbousset and Daumas, _op. cit._ p. 67 (Mantetis). Ellis, _Yoruba-speaking Peoples of the Slave Coast_, p. 300 (Tshi- and E[(w]e-speaking peoples of the African West Coast). Burckhardt, _Bedouins and Wahábys_, pp. 68, 70. Blunt, _op. cit._ ii. 232 _sq._ (Bedouins of the Euphrates). von Haxthausen, _Transcaucasia_, p. 415 (Ossetes).]

[Footnote 103: Ellis, _Tour through Hawaii_, p. 429. Williams and Calvert, _Fiji and the Fijians_, p. 23. Forbes, _A Naturalist's Wanderings in the Eastern Archipelago_, p. 473 (Timorese).]

[Footnote 104: Falkner, _Description of Patagonia_, p. 123. Anderson, _Lake Ngami_, p. 231 (Damaras).]

Thus among some Australian tribes, "a man accused of a serious offence gets a month's citation to appear before the tribunal, on pain of death if he disobeys. If he is found guilty of a private wrong, he is painted white, and made to stand out at fifty paces in front of the accuser and his friends, all fully armed. They throw at him a shower of spears and 'bumarangs,' from which he protects himself with a light shield."[105] Among the Aricara Indians of the Missouri, who, for the most part, punish murder with death, the nearest relative of the murdered man was deputed by the council to act the part of executioner.[106] With reference to the natives of Bali, Raffles says that "in the execution of the punishment awarded by the court there is this peculiarity, that the aggrieved party or his friends are appointed to inflict it."[107] In some parts of Afghanistan, "if the offended party complains to the Sirdar, or if _he_ hears of a murder committed, he first endeavours to bring about a compromise, by offering the Khoon Behau, or price of blood; but if the injured party is inexorable, the Sirdar lays the affair before the King, who orders the Cauzy to try it; and, if the criminal is convicted, gives him up to be executed by the relations of the deceased."[108] Among the peoples round Lake Nyassa and Tanganyika and among the Bantu tribes generally, "when a murderer is caught and proved guilty he is given over {185} to the relatives of the person murdered, who have power to dispose of him as they choose."[109] A similar practice prevails among the Mishmis,[110] Bataks,[111] and Kamchadales.[112] It was also recognised by early Slavonic,[113] Teutonic, and English codes.[114] According to the provisions of a code granted so late as 1231, by the Abbey of St. Bertin to the town of Arques, when a man was convicted of intentional homicide, he was handed over to the family of the murdered person, to be slain by them.[115]

[Footnote 105: Fraser, _Aborigines of New South Wales_, p. 40 _sq._]

[Footnote 106: Bradbury, _Travels in the Interior of America_, p. 168.]

[Footnote 107: Raffles, _op. cit._ ii. p. ccxxxvii.]

[Footnote 108: Elphinstone, _Kingdom of Caubul_, ii. 105 _sq._]

[Footnote 109: Macdonald, in _Jour. Anthr. Inst._ xxii. 108.]

[Footnote 110: Cooper, _Mishmee Hills_, p. 238.]

[Footnote 111: von Brenner, _op. cit._ p. 212.]

[Footnote 112: Georgi, _Russia_, iii. 137.]

[Footnote 113: Macieiowski, _Slavische Rechtsgeschichte_, ii. 127.]

[Footnote 114: Wilda, _Strafrecht der Germanen_, p. 167. _Lex Salica_, 68. _Laws of Cnut_, i. 53. _Leges Henrici I._ lxxi. 1.]

[Footnote 115: _Leges villæ de Arkes ab abbate S. Bertini concessæ_, 28 (d'Achery, _Spicilegium_, iii. 608).]

But although, in innumerable cases, punishment and judicial organisation have succeeded a previous system of revenge, and thus are products of social development, their existence or non-existence among a certain people is no exact index to the general state of culture which that people has attained. Even among low savages we have noticed instances of punishments which are inflicted by the community as a whole, as also by special judicial authorities. On the other hand, we are taught by the history of European and Oriental nations, that the system of revenge is not inconsistent with a comparatively high degree of culture.[116] We can now see the reason for this apparent anomaly. In a small savage community, all the members of which are closely united with each other, an injury inflicted upon one is readily felt by all. The case may be different in a State consisting of loosely-connected social components, which, though forming a political unity, have little communication between themselves, and take no interest in each other's private dealings. And, whilst in the smaller society public resentment is thus more easily aroused, such a society also stands in more urgent need of internal peace.

[Footnote 116: See _infra_, on Blood-revenge.]

* * * * *

Our assumption that punishment is, in the main, an expression of public indignation, is opposed to another theory, according to which the chief object of punishment, not only ought to be, but actually is, or has been, {186} to prevent crime by deterring people from committing it. We are even told that punishment, inflicted for such a purpose, is, largely, at the root of the moral consciousness; that punishment is not the result of a sense of justice, but that the sense of justice is a result of punishment; that, by being punished by the State, certain acts gradually came to be regarded as worthy of punishment, in other words, as morally wrong.[117]

[Footnote 117: Rée, _Ursprung der moralischen Empfindungen_, p. 45 _sqq._ _Idem_, _Entstehung des Gewissens_, p. 190 _sqq._]

There are certain facts which seem to support the supposition that punishment has, to a large extent, been intended to act as a deterrent. We find that among various semi-civilised and civilised peoples the criminal law has assumed a severity which far surpasses the rigour of the _lex talionis_.

Speaking of the Azteks, Mr. Bancroft observes that "the greater part of their code might, like Draco's, have been written in blood--so severe were the penalties inflicted for crimes that were comparatively slight, and so brutal and bloody were the ways of carrying those punishments into execution."[118] The punishment of death was inflicted on the man who dressed himself like a woman, on the woman who dressed herself like a man,[119] on tutors who did not give a good account of the estates of their pupils,[120] on those who carried off, or changed, the boundaries placed in the fields by public authority;[121] and should an adulterer endeavour to save himself by killing the injured husband, his fate was to be roasted alive before a slow fire, his body being basted with salt and water that death might not come to his relief too soon.[122] Nor did the ancient Peruvian code economise human suffering by proportioning penalties to crimes; the punishment most commonly prescribed by it was death.[123] The penal code of China, though less cruel in various respects than the European legislation of the eighteenth century, awards death for a third and aggravated theft, for defacing the branding inflicted for former offences,[124] and for privately casting copper coin;[125] whilst for the commission of the most heinous crimes {187} the penalty is "to be cut into ten thousand pieces," which appears to amount, at least, to a license to the executioner to aggravate and prolong the sufferings of the criminal by any species of cruelty he may think proper to inflict.[126] In Japan, before the revolution of 1871, "the punishments for crime had been both rigorous and cruel; death was the usual punishment, and death accompanied by tortures was the penalty for aggravated crimes.[127] According to the Mosaic law, death is inflicted for such offences as breach of the Lord's day,[128] going to wizards,[129] eating the fat of a beast of sacrifice,[130] eating blood,[131] approaching unto a woman "as long as she is put apart for her uncleanness,"[132] and various kinds of sexual offences.[133] The laws of Manu provide capital punishment for those who forge royal edicts and corrupt royal ministers;[134] for those who break into a royal store-house, an armoury, or a temple, and those who steal elephants, horses, or chariots;[135] for thieves who are taken with the stolen goods and the implements of burglary;[136] for cut-purses on the third conviction;[137] whilst a wife, who, proud of the greatness of her relatives or her own excellence, violates the duty which she owes to her lord, shall be devoured by dogs in a place frequented by many, and the male offender shall be burnt on a red-hot iron bed.[138]

[Footnote 118: Bancroft, _Native Races of the Pacific States_, ii. 454.]

[Footnote 119: Clavigero, _History of Mexico_, i. 358.]

[Footnote 120: _Ibid._ i. 359.]

[Footnote 121: _Ibid._ i. 355.]

[Footnote 122: Bancroft, _op. cit._ ii. 465 _sq._]

[Footnote 123: Garcilasso de la Vega, _First Part of the Royal Commentaries of the Yncas_, i. 145, 151 _sq._]

[Footnote 124: Wells Williams, _Middle Kingdom_, i. 512.]

[Footnote 125: _Ta Tsing Leu Lee_, sec. ccclix. p. 397.]

[Footnote 126: _Ibid._ sec. ccliv. p. 269 n. [dagger]]

[Footnote 127: Reed, _Japan_, i. 323. Thunberg, _Travels_, iv. 65.]

[Footnote 128: _Exodus_, xxxi. 14.]

[Footnote 129: _Leviticus_, xx. 6.]

[Footnote 130: _Ibid._ vii. 25.]

[Footnote 131: _Ibid._ vii. 27.]

[Footnote 132: _Ibid._ xviii. 19.]

[Footnote 133: _Ibid._ xviii. 6 _sqq._]

[Footnote 134: _Laws of Manu_, ix. 232.]

[Footnote 135: _Ibid._ ix. 280.]

[Footnote 136: _Ibid._ ix. 270.]

[Footnote 137: _Ibid._ ix. 277.]

[Footnote 138: _Ibid._ viii. 371 _sq._]

Increasing severity has been a characteristic of European legislation up to quite modern times. Towards the end of the thirteenth century, the English law knows some seven crimes which it treats as capital, namely, treason, homicide, arson, rape, robbery, burglary, and grand larceny; but the number of capital offences grew rapidly.[139] From the Restoration to the death of George III.--a period of 160 years--no less than 187 such offences, wholly different in character and degree, were added to the criminal code; and when, in 1837, the punishment of death was removed from about 200 crimes, it was still left applicable to exactly the same offences as were capital at the end of the thirteenth century.[140] Pocket-picking was punishable with death until the year 1808;[141] horse-stealing, cattle-stealing, {188} sheep-stealing, stealing from a dwelling-house, and forgery, until 1832;[142] letter-stealing and sacrilege, until 1835;[143] rape, until 1841;[144] robbery with violence, arson of dwelling-houses, and sodomy, until 1861.[145] And not only was human life recklessly sacrificed, but the mode of execution was often exceedingly cruel. In the beginning of the fifteenth century, the _Peine forte et dure_, or pressing to death with every aggravation of torture, was adopted as a manner of punishment suitable to cases where the accused refused to plead.[146] Burning alive of female offenders still occurred in England at the end of the eighteenth century,[147] being considered by the framers of the law as a commutation of the sentence of hanging required by decency.[148] Still more cruel was the punishment inflicted on male traitors: they were first hanged by the neck and cut down before life was extinct, their entrails were taken out and burned before their face, then they were beheaded and quartered, and the quarters were set up in diverse places.[149] This punishment continued to exist in England as late as in the reign of George III., and even then Sir Samuel Romilly, the great agitator against its continuance, brought upon himself the odium of the law officers of the Crown, who declared that he was "breaking down the bulwarks of the Constitution."[150] Such cruelties were not peculiar to the English. On the contrary, as Sir James Stephen observes, though English people, as a rule, have been singularly reckless about taking life, they have usually been averse to the infliction of death by torture.[151] In various parts of the Continent we find such punishments as breaking on the wheel, quartering alive, and tearing with red-hot pincers, in use down to the end of the eighteenth century.

[Footnote 139: Pollock and Maitland, _op. cit._ ii. 511.]

[Footnote 140: May, _Constitutional History of England_, ii. 595. Mackenzie, _Studies in Roman Law_, p. 424 _sq._]

[Footnote 141: Pike, _History of Crime in England_, ii. 450.]

[Footnote 142: _Ibid._ ii. 451. Stephen, _History of the Criminal Law of England_, i. 474.]

[Footnote 143: Pike, _op. cit._ ii. 451. Stephen, _op. cit._ i. 474.]

[Footnote 144: Stephen, _op. cit._ i. 475.]

[Footnote 145: _Ibid._ i. 475.]

[Footnote 146: For the manner in which this torture was inflicted, see Andrews, _Old-Time Punishments_, p. 203 _sq._]

[Footnote 147: _Ibid._ p. 198. Stephen, _op. cit._ i. 477.]

[Footnote 148: Andrews, _op. cit._ p. 192.]

[Footnote 149: Holinshed, _Chronicles of England, &c._ i. 310. Thomas Smith, _Commonwealth of England_, p. 198.]

[Footnote 150: Andrews, _op. cit._ p. 203. An earlier method of punishing traitors was boiling to death, which was adopted by Henry VIII. as a punishment for poisoners as well (Holinshed, _op. cit._ i. 311).]

[Footnote 151: Stephen, _op. cit._ i. 478. _Cf._ Thomas Smith, _op. cit._ p. 193 _sq._]

It is interesting to compare these punishments with those practised among savages. Wanton cruelty is not a general characteristic of their public justice.

{189} Among several uncivilised peoples capital punishment is said to be unknown or almost so.[152] Among others it is restricted to a few particularly atrocious offences. Among the Greenlanders "none are put to death but murderers, and such witches as are thought to have killed some one by their art."[153] The Aleuts punished with death murderers and betrayers of community secrets.[154] In Samoa and New Guinea murder and adultery are punished capitally;[155] among the Bataks, open robbery and murder, provided that the offender is unable to redeem his life by a sum of money;[156] among the Kukis, only treason or an attempt at violence on the person of the King.[157] Among the Mishmis, adultery committed against the consent of the husband is punished with death, but all other crimes, including murder, are punished by fines; however if the amount is not forthcoming the offender is cut up by the company assembled.[158] In Kar Nicobar the only cause for a "death penalty" that Mr. Distant could discover was madness.[159] Among the Soolimas "murder is the only crime punishable with death."[160] Among the Congo natives "the only capital crimes are stated to be those of poisoning and adultery."[161] Of the kingdom of Fida Bosman writes, "Here are very few capital crimes, which are only murthers, and committing adultery with the King's or his great men's wives."[162] Among the Wanika two crimes are visited with capital punishment--murder and an improper use of sorcery;[163] among the Wagogo[164] and Washambala,[165] witchcraft only. Among the Basutos every murderer is by law liable to death, but the sentence is generally commuted into confiscation; an incorrigible thief sometimes pays with his head, but is generally fined, whereas treason and rebellion against authority are treated with more severity.[166] Among the Kafirs, cases of assault on the persons of wives of the chiefs, {190} and what are deemed aggravated cases of witchcraft, are the only crimes which usually involve the punishment of death, very summarily inflicted; whereas this punishment seldom follows even murder, when committed without the supposed aid of supernatural powers.[167]

[Footnote 152: von Siebold, _Ethnol. Studien über die Aino auf Yesso_, p. 35; Batchelor, _Ainu and their Folk-Lore_, p. 284. Dalton, _op. cit._ p. 115 (Kakhyens). Marsden, _op. cit._ p. 248 (Rejangs of Sumatra). Riedel, _De sluik- en kroesharige rassen tusschen Selebes en Papua_, p. 103 (Serangese). Worcester, _op. cit._ pp. 413, 492 (Mangyans and Tagbanuas). Kubary, 'Die Palau-Inseln,' in _Journal des Museum Godeffroy_, iv. 42 (Pelew Islanders). de Abreu, _op. cit._ p. 152 (Canary Islanders). Frisch, _Die Eingeborenen Süd-Afrika's_, p. 322 (Hottentots).]

[Footnote 153: Cranz, _op. cit._ i. 177.]

[Footnote 154: Petroff, _loc. cit._ p. 152.]

[Footnote 155: Turner, _Samoa_, p. 178. Chalmers, _Pioneering in New Guinea_, p. 179.]

[Footnote 156: Marsden, _op. cit._ p. 389.]

[Footnote 157: Dalton, _op. cit._ p. 45. Stewart, in _Jour. As. Soc. Bengal_, xxiv. p. 627.]

[Footnote 158: Griffith, _ibid._ vi. 332.]

[Footnote 159: Distant, in _Jour. Anthr. Inst._ iii. 6.]

[Footnote 160: Laing, _Travels_, p. 365.]

[Footnote 161: Tucker, _Expedition to Explore the River Zaire_, p. 383.]

[Footnote 162: Bosman, _op. cit._ p. 331.]

[Footnote 163: New, _op. cit._ p. 111.]

[Footnote 164: Beverley, in Steinmetz, _Rechtsverhältnisse_, p. 215.]

[Footnote 165: Lang, _ibid._ p. 259.]

[Footnote 166: Casalis, _op. cit._ p. 228.]

[Footnote 167: Maclean, _Compendium of Kafir Laws and Customs_, p. 35 _sq._]

Nor, as it seems, is savage justice fond of torturing its victims before they are killed. The Maoris exclaimed loudly against the English method of executing criminals, first telling them that they are to die, then letting them lie for days and nights in prison, and finally leading them slowly to the gallows. "If a man commits a crime worthy of death," they said, "we shoot him, or chop off his head; but we do not tell him first that we are going to do so."[168] Dr. Codrington gives the following description of the cases of burning persons alive which have occasionally happened in Pentecost Island:--"In fighting time there, if a great man were very angry with the hostile party, he would burn a wounded enemy. When peace had been made and the chiefs had ordered all to behave well that the country might settle down in quiet, if any one committed such a crime as would break up the peace, such as adultery, they would tie him to a tree, heap fire-wood round him, and burn him alive, a proof to the opposite party of their detestation of his wickedness. This was not done coolly as a matter of course in the execution of a law, but as a horrible thing to do, and done for the horror of it; a horror renewed in the voice and face of the native who told me of the roaring flames and shrieks of agony."[169] This story is not without interest when compared with the cold-blooded burning of female criminals and women suspected of witchcraft in Christian Europe.

[Footnote 168: Yate, _Account of New Zealand_, p. 105.]

[Footnote 169: Codrington, _op. cit._ p. 347.]

There is sufficient evidence to show that the severe punishments adopted by peoples of a higher culture have been regarded by them as beneficial to society. The legislators themselves often refer to the deterrent effects of punishment.

The Peruvian Incas considered that light punishments gave confidence to evil-doers, whilst "through their great care in punishing a man's first delinquency, they avoided the effects of his second and third, and of the host of others that are committed in every commonwealth where no diligence is observed {191} to root up the evil plant at the commencement."[170] According to the Prefatory Edict of the Emperor Kaung-hee, published in 1679, the chief ends proposed by the institution of punishments in the Chinese Empire "have been to guard against violence and injury, to repress inordinate desires, and to secure the peace and tranquillity of an honest and unoffending community."[171] In the Laws of Manu punishment is described as a protector of all creatures:--"If the king did not, without tiring, inflict punishment on those worthy to be punished, the stronger would roast the weaker, like fish on a spit; the crow would eat the sacrificial cake and the dog would lick the sacrificial viands, and ownership would not remain with any one, the lower ones would usurp the place of the higher ones. The whole world is kept in order by punishment, for a guiltless man is hard to find; through fear of punishment the whole world yields the enjoyments which it owes."[172] Even the gods, the Dânavas, the Gandharvas, the Râkshasas, the bird and snake deities, give the enjoyments due from them only if they are tormented by the fear of punishment.[173] In mediæval law-books determent is frequently referred to as an object of punishment.[174] And in more modern times, till the end of the eighteenth century at least, the idea that punishment should inspire fear was ever present to the minds of legislators.

[Footnote 170: Garcilasso de la Vega, _op. cit._ i. 151 _sq._]

[Footnote 171: _Ta Tsing Leu Lee_, p. lxvii.]

[Footnote 172: _Laws of Manu_, vii. 14, 15, 20-22, 24 _sq._]

[Footnote 173: _Ibid._ vii. 23.]

[Footnote 174: _Leges Burgundionum_, Leges Gundebati, 52: "Rectius enim paucorum condempnatione multitudo corregitur, quam sub specie incongruae civilitatis intromittatur occasio, quae licentiam tribuat delinquendi." _Capitulare Aquisgranense An._ 802, 33: "Sed taliter hoc corripiantur, ut caeteri metum habeant talia perpetrandi" (Migne, _Patrologiæ cursus_, xcvii. 230). _Chlotar II. Edictum de Synodo Parisiensi_, 24: "In ipsum capitali sententia judicetur, qualiter alii non debeant similia perpetrare" (Migne, _op. cit._ lxxx. 454). For other instances, see Brunner, _Deutsche Rechtsgeschichte_, ii. 588, n. 6.]

The same idea is also conspicuous in the practice of punishing criminals in public.[175] A petty thief in the pillory and a scold on the cucking-stool were, in earlier times, spectacles familiar to everybody, whilst persons still living remember seeing offenders publicly whipped in the streets. "A gallows or tree with a man hanging upon it," says Mr. Wright, "was so frequent an object in the country that it seems to have been almost a natural ornament of a landscape, and it is thus introduced by no {192} means uncommonly in mediæval manuscripts."[176] In atrocious cases it was usual for the court to direct the murderer, after execution, to be hung upon a gibbet in chains near the place where the fact was committed, "with the intention of thereby deterring others from capital offences"; and in order that the body might all the longer serve this useful purpose, it was saturated with tar before it was hung in chains.[177] The popularity which mutilation as a punishment enjoyed during the Middle Ages was largely due to the opinion, that "a malefactor miserably living was a more striking example of justice than one put to death at once."[178]

[Footnote 175: Günther, _Die Idee der Wiedervergeltung_, i. 211 _sq._ n. 31.]

[Footnote 176: Wright, _History of Domestic Manners and Sentiments in England during the Middle Ages_, p. 346.]

[Footnote 177: Holinshed, _op. cit._ i. 311. Blackstone, _Commentaries on the Laws of England_, iv. 201. Cox, 'Hanging in Chains,' in _The Antiquary_, xxii. 213 _sq._]

[Footnote 178: Strutt, _View of the Manners, &c. of the Inhabitants of England_, ii. 8.]

We shall now consider whether these facts really contradict our thesis that punishment is essentially an expression of public indignation.

It may, first, be noticed that the punishment actually inflicted on the criminal is in many cases much less severe than the punishment with which the law threatens him. In China the execution of the law is, on the whole, lenient in comparison with its literal and _prima facie_ interpretation.[179] "Many of the laws seem designed to operate chiefly _in terrorem_, and the penalty is placed higher than the punishment really intended to be inflicted, to the end that the Emperor may have scope for mercy, or, as he says, 'for leniency beyond the bounds of the law.'"[180] In Europe, during the Middle Ages, malefactors frequently received charters of pardon, and in later times it became a favourite theory that it was good policy, in framing penal statutes, to make as many offences as possible capital, and to leave to the Crown to relax the severity of the law. In England, about the beginning of the nineteenth century, the punishment of death was actually inflicted in only a small proportion of the cases in {193} which sentence was passed; indeed, "not one in twenty of the sentences was carried into execution."[181] This discrepancy between law and practice bears witness, not only to the extent to which the minds of legislators were swayed by the idea of inspiring fear, but to the limitation of determent as a penal principle. It has been observed that the excessive severity of laws hinders their execution. "Society revolted against barbarities which the law prescribed. Men wronged by crimes, shrank from the shedding of blood, and forbore to prosecute: juries forgot their oaths and acquitted prisoners, against evidence: judges recommended the guilty to mercy."[182] Yet, in spite of all such deductions, there can be no doubt that the hangman had plenty to do. Hanging persons, says Mr. Andrews, was almost a daily occurrence in the earlier years of the nineteenth century, "for forging notes, passing forged notes, and other crimes which we now almost regard with indifference."[183]

[Footnote 179: Staunton, in his Preface to _Ta Tsing Leu Lee_, p. xxvii. _sq._]

[Footnote 180: Wells Williams, _op. cit._ i. 392 _sq._]

[Footnote 181: Stephen, _op. cit._ i. 471. May, _op. cit._ ii. 597.]

[Footnote 182: May, _op. cit._ ii. 597.]

[Footnote 183: Andrews, _op. cit._ p. 218. _Cf._ Olivecrona, _Om dödsstraffet_, p. x.]

Another circumstance worth mentioning is, that in earlier times the detection of criminals was much rarer and more uncertain than it is now.[184] It has been argued on utilitarian grounds that, "to enable the value of the punishment to outweigh that of the profit of the offence, it must be increased, in point of magnitude, in proportion as it falls short in point of certainty."[185] But the rareness of detection would also for purely emotional reasons tend to increase the severity of the punishment. When one criminal out of ten or twenty is caught, the accumulated indignation of the public turns against him, and he becomes a scapegoat for all the rest.

[Footnote 184: _Cf._ Morrison, _Crime and its Causes_, p. 175.]

[Footnote 185: Bentham, _Principles of Morals and Legislation_, p. 184. _Cf._ Paley, _Moral and Political Philosophy_, vi. 9 (_Complete Works_, ii. 371).]

However, the chief explanation of the great severity of certain criminal codes lies in their connection with despotism or religion or both.[186] An act which is prohibited {194} by law may be punished, not only on account of its intrinsic character, but for the very reason that it is illegal. When the law is, from the outset, an expression of popular feelings, the severity of the penalty with which it threatens the transgressor depends, in the first place, on the public indignation evoked by the act itself, independently of the legal prohibition of it. But the case is different with laws established by despotic rulers or ascribed to divine lawgivers. Such laws have a tendency to treat criminals not only as offenders against the individuals whom they injure or against society at large, but as rebels against their sovereign or their god. Their disobedience to the will of the mighty legislator incurs, or is supposed to incur, his anger, and is, in consequence, severely resented. But however severe they be, the punishments inflicted by the despot on disobedient subjects are not regarded as mere outbursts of personal anger. In the archaic State the king is an object of profound regard, and even of religious veneration. He is looked upon as a sacred being, and his decrees as the embodiment of divine justice. The transgression of any law he makes is, therefore, apt to evoke a feeling of public indignation proportionate to the punishment which he pleases to inflict on the transgressor. Again, as to acts which are supposed to arouse the anger of invisible powers, the people are anxious to punish them with the utmost severity so as to prevent the divine wrath from turning against the community itself. But the fear which, in such cases, lies at the bottom of the punishment, is certainly combined with genuine indignation against the offender, both because he rebels against God and religion, and because he thereby exposes the whole community to supernatural dangers.

[Footnote 186: This has been previously pointed out by Prof. Durkheim, in his interesting essay, 'Deux lois de l'évolution pénale' (_L'année sociologique_, iv. [1899-1900], p. 64 _sqq._), with which I became acquainted only when the present chapter was already in type. Montesquieu observes (_De l'esprit des lois_, vi. 9 [_[OE]uvres_, p. 231]), "Il serait aisé de prouver que, dans tous ou presque tous les États d'Europe, les peines ont diminué ou augmenté à mesure qu'on s'est plus approché ou plus éloigné de la liberté."]

{195} Various facts might be quoted in support of this explanation. Whilst the punishments practised among the lower races generally, are not conspicuous for their severity, there are exceptions to this rule among peoples who are governed by despotic rulers.

Under the Ashanti code, even the most trivial offences are punishable with death.[187] In Madagascar, also, "death was formerly inflicted for almost every offence."[188] In Uganda the ordinary punishments were "death by fire, being hacked to pieces by reed splinters, fine, imprisonment in the stocks _mvuba_, or in the **slave fork _kaligo_, also mutilation. It is most common to see people deprived of an eye, or in some cases of both eyes; persons lacking their ears are also frequently met with."[189] Among the Wassukuma, whose chieftains used to have power of life and death over their subjects, a person who was guilty of disobedience to his ruler, or of some action which the ruler considered wicked and punishable, was condemned to death.[190] In the Sandwich Islands, "a chief takes the life of one of his own people for any offence he may commit, and no one thinks he has a right to interfere."[191]

[Footnote 187: Ellis, _Tshi-speaking Peoples of the Gold Coast_, p. 166.]

[Footnote 188: Ellis, _History of Madagascar_, i. 374.]

[Footnote 189: Ashe, _Two Kings of Uganda_, p. 293. _Cf._ Wilson and Felkin, _Uganda and the Egyptian Soudan_, i. 201.]

[Footnote 190: Kollmann, _Victoria Nyanza_, p. 431.]

[Footnote 191: Ellis, _Tour through Hawaii_, p. 431.]

In the old monarchies of America and Asia there was an obvious connection between the punishments prescribed by their laws and the religious-autocratic form of their governments. According to Garcilasso de la Vega, the Peruvians--among whom the most common punishment was death--maintained "that a culprit was not punished for the delinquencies he had committed, but for having broken the commandment of the Ynca, who was respected as God," and that, viewed in this light, the slightest offence merited to be punished with death.[192] In China the Emperor was regarded as the vicegerent of Heaven especially chosen to govern all nations, and was supreme in everything, holding at once the highest legislative and executive powers, without limit or control.[193] According {196} to ancient Japanese ideas, "the duty of a good Japanese consists in obeying the Mikado, without questioning whether his commands are right or wrong. The Mikado is god and vicar of all the gods, hence government and religion are the same."[194] In Rome the criminal law, which for a long time was characterised by great moderation,[195] gradually grew more severe according as absolutism made progress. Sylla, the dictator, not only put thousands of citizens to death by proscription without any form of trial, but fixed, in the Cornelian criminal code, for heinous offences the punishment called _aquæ et ignis interdictio_. Under the Emperors some new and cruel capital punishments were introduced, such as burning alive and exposing to wild beasts; whilst at the same time offences such as driving away horses or cattle were made capital.[196] In mediæval and modern Europe the increase of the royal power was accompanied by increasing severity of the penal codes. Every crime came to be regarded as a crime against the King. Indeed, breach of the King's peace became the foundation of the whole Criminal Law of England; the right of pardon, for instance, as a prerogative of the Crown, took its origin in the fact that the King was supposed to be injured by a crime, and could therefore waive his remedy.[197] And the King was not only regarded as the fountain of social justice, but as the earthly representative of the heavenly lawgiver and judge.[198]

[Footnote 192: Garcilasso de la Vega, _op. cit._ i. 145.]

[Footnote 193: Wells Williams, _op. cit._ i. 393.]

[Footnote 194: Griffis, _Religions of Japan_, p. 92. _Cf._ _Idem_, _Mikado's Empire_, p. 100.]

[Footnote 195: _Cf._ Livy, x. 9; Polybius, vi. 14; Gibbon, _History of the Decline and Fall of the Roman Empire_, v. 318, 326.]

[Footnote 196: Mackenzie, _Studies in Roman Law_, pp. 408, 409, 414. Gibbon, _op. cit._ v. 320. _Cf._ Mommsen, _Römisches Strafrecht_, p. 943.]

[Footnote 197: Cherry, _Growth of Criminal Law in Ancient Communities_, pp. 68, 105.]

[Footnote 198: Henke, _Grundriss einer Geschichte des deutschen peinlichen Rechts_, ii. 310. Abegg, _Die verschiedenen Strafrechtstheorieen_, p. 117. Du Boys, _Histoire du droit criminel de l'Espagne_, p. 323.]

Of the connection between punishment and the belief in supernatural agencies many instances are found already in the savage world.[199] The great severity with which certain {197} infractions of custom are punished has obviously a superstitious origin. In Polynesia, according to Ellis, "the prohibitions and requisitions of the tabu were strictly enforced, and every breach of them punished with death, unless the delinquents had some very powerful friends who were either priests or chiefs.[200] Among the western tribes of Torres Straits, "death was the penalty for infringing the rules connected with the initiation period _i.e._, for sacrilege."[201] Among the Port Lincoln aborigines the women and children are not allowed to see any of the initiation ceremonies, and "any impertinent curiosity on their part is punishable with death, according to the ancient custom."[202] Among the Masai, who believe that the boiling of milk will cause the cows to run dry, "any one caught doing so can only atone for the sin with a fearfully heavy fine, or, failing that, the insult to the holy cattle will be wiped out in his blood."[203] The penalty of death which is frequently imposed on incest or other sexual offences is largely due to the influence of religious or superstitious beliefs.[204] And in various cases of sacrilege the offender is offered up as a sacrifice to the resentful god.[205]

[Footnote 199: Steinmetz, _Ethnol. Studien zur ersten Entwicklung der Strafe_, ii. 340 _sq._ The connection between punishment and religion has been emphasised by Prof. Durkheim (_Division du travail social_, p. 97 _sqq._) and M. Mauss ('La religion et les origines du droit pénal,' in _Revue de l'histoire des religions_, vols. xxxiv. and xxxv.). But Prof. Durkheim exaggerates the importance of this connection by assuming (p. 97) that "le droit pénal à l'origine était essentiellement religieux."]

[Footnote 200: Ellis, _Tour through Hawaii_, p. 394. _Cf._ Olmsted, _Incidents of a Whaling Voyage_, p. 248 _sq._; Mauss, in _op. cit._ xxxv. 55.]

[Footnote 201: Haddon, 'Ethnography of the Western Tribes of Torres Straits,' in _Jour. Anthr. Inst._ xix. 335.]

[Footnote 202: Schürmann, 'Aboriginal Tribes of Port Lincoln,' in Woods, _Native Tribes of South Australia_, p. 234.]

[Footnote 203: Johnston, _Kilima-njaro Expedition_, p. 425.]

[Footnote 204: See _infra_, on Sexual Morality.]

[Footnote 205: See _infra_, on Human Sacrifice.]

According to Hebrew notions, it is man's duty to avenge offences against God; every crime involves a breach of God's law, and is punishable as such, and hardly any punishment is too severe to be inflicted on the ungodly.[206] These ideas were adopted by the Christian Church and by Christian governments.[207] The principle {198} stated in the Laws of Cnut, that "it belongs very rightly to a Christian king that he avenge God's anger very deeply, according as the deed may be,"[208] was acted upon till quite modern times, and largely contributed to the increasing severity of the penal codes. It was therefore one of the most important steps towards a more humane legislation when, in the eighteenth century, this principle was superseded by the contrary doctrine, "Il faut faire honorer la Divinité, et ne la venger jamais."[209]

[Footnote 206: _Cf._ Robertson Smith, _Religion of the Semites_, p. 162 _sq._]

[Footnote 207: von Eicken, _Geschichte und System der mittelalterlichen Weltanschauung_, p. 563 _sqq._ Abegg, _op. cit._ p. 111 _sq._ Wilda, _Strafrecht der Germanen_, p. 530 _sq._ Günther, _op. cit._ ii. 12 _sqq._ Henke, _op. cit._ ii. 310 _sq._ Brunner, _op. cit._ ii. 587.]

[Footnote 208: _Laws of Cnut_, ii. 40.]

[Footnote 209: Montesquieu, _De l'esprit des lois_, xii. 4 (_[OE]uvres_, p. 282).]

From the fact, then, that crimes are punished not only as wrongs against individuals, but as wrongs against the State, and, especially, as wrongs against some despotic or semi-divine lawgiver, or against the Deity, it follows that even seemingly excessive punishments may, to a large extent, be regarded as manifestations of public resentment. This emotion does not necessarily demand like for like. The law of talion presupposes equality of rights; it is not applicable to impersonal offences, nor to offences against kings or gods. And as the demands of public resentment may exceed the _lex talionis_, so they may on the other hand fall short of it. Moreover, though the degree of punishment on the whole more or less faithfully represents the degree of indignation aroused by any particular crime in comparison with other crimes belonging to the same penal system, we must not take the comparative severity of the criminal laws of different peoples as a safe index to the intensity of their reprobation of crime. As we have seen before, the strength of moral indignation cannot be absolutely measured by the desire to cause pain to the offender. When the emotion of resentment is sufficiently refined, the infliction of suffering is regarded as a means rather than as an end.

By all this I certainly do not mean to deny that punishment, though in the main an expression of public indignation, is also applied as a means of deterring from crime. Criminal law is preventive, its object is to forbid and {199} to warn, and it uses punishment as a threat. But the acts which the law forbids are, as a rule, such as public opinion condemns as wrong, and it is their wrongness that in all ages has been regarded as the justification of the penalties to which they are subject. It is true that there are instances in which the law punishes acts which in themselves are not apt to evoke public resentment, and others in which the severity of the punishment does not exactly correspond with the resentment they evoke. The State may have a right to sacrifice the welfare of individuals in order to attain some desirable end. It may have a right to do so in cases where no crime has been committed, it would therefore seem to be all the more justified in doing so when the evil has been preceded by a warning. And yet, in the case of punishment, it is only within narrow limits that such a right is granted to the State. To punish a person could not simply mean that he has to suffer for the benefit of the society; there is always opprobrium connected with punishment. Hence the scope which justice leaves for determent pure and simple is not wide. Sir James Stephen observes:--"You cannot punish anything which public opinion, as expressed in the common practice of society, does not strenuously and unequivocally condemn. To try to do so is a sure way to produce gross hypocrisy and furious reaction."[210] Experience shows that the fate of all disproportionately severe laws which make too liberal use of punishment as a deterrent is that they come to be little followed in practice and are finally annulled. As Gibbon says, "whenever an offence inspires less horror than the punishment awarded to it, the rigour of penal law is obliged to give way to the common feelings of mankind."

[Footnote 210: Stephen, _Liberty, Equality, Fraternity_, p. 159. _Cf._ Mommsen, _Römisches Strafrecht_, p. 91 _sq._]

Numerous data, to be referred to in following chapters, will show how faithfully punishment reflects the emotion of resentment, and how impossible it would be to explain it from considerations of social utility without close reference {200} to the feeling of justice. Why, for instance, should the attempt to commit a crime, when its failure obviously depends on mere chance, be punished less severely than the accomplished crime, if not because the indignation it arouses is less intense? Would not the same amount of suffering be requisite to deter a person from attempting to murder his neighbour as to deter him from actually committing the murder? And is there any reason to suppose that the unsuccessful offender is less dangerous to society than he who succeeds? All the facts referring to criminal responsibility, as we shall see, suggest resentment, not determent, as the basis of punishment, and so does the gradation of the punishment conformably to the magnitude of the crime.[211] According to the principle of determent, as expressed by Anselm von Feuerbach and others, punishment should be neither more nor less severe than is necessary for the suppression of crime.[212] But if this rule were really acted upon, the penalties imposed, especially on minor offences, which the law has been utterly unable to suppress, would certainly be much less lenient than they actually are. Moreover, if there were no intrinsic connection between punishment and resentment, how could we explain the predilection of early law for the principle of talion--an eye for an eye, a tooth for a tooth, a life for a life--[213] which, as we have seen, so frequently regulates the custom of revenge?

[Footnote 211: _Cf._ Durkheim, _Division du travail social_, p. 93 _sq._]

[Footnote 212: von Feuerbach, _Ueber die Strafe als Sicherungsmittel vor künftigen Beleidigungen des Verbrechers_, p. 83. von Gizycki, _Introduction to the Study of Ethics_, p. 188.]

[Footnote 213: On this subject, see Günther, _op. cit._ _passim_.]

The criminal law of a society may thus, on the whole, be taken for a faithful exponent of moral sentiments prevalent in that society at large. The attempt to make law independent of morality, and to allot to it a kingdom of its own, is really, I think, only an excuse for the moral shortcomings which it reveals if scrutinised from the standpoint of a higher morality. Law does not show us the moral consciousness in its refinement. But refinement {201} is a rare thing, and criminal law is in the main on a level with the unreflecting morality of the vulgar mind. Philosophers and theorisers on law would do better service to humanity if they tried to persuade people not only that their moral ideas require improvement, but that their laws, so far as possible, ought to come up to the improved standard, than they do by wasting their ingenuity in sophisms about the sovereignty of Law and its independence of the realm of Justice.