Chapter 17

118Bancroft,Native Races of the Pacific States, ii. 454.

119Clavigero,History of Mexico, i. 358.

120Ibid.i. 359.

121Ibid.i. 355.

122Bancroft,op. cit.ii. 465sq.

123Garcilasso de la Vega,First Part of the Royal Commentaries of the Yncas, i. 145, 151sq.

124Wells Williams,Middle Kingdom, i. 512.

125Ta Tsing Leu Lee, sec. ccclix. p. 397.

126Ibid.sec. ccliv. p. 269 n. †

127Reed,Japan, i. 323. Thunberg,Travels, iv. 65.

128Exodus, xxxi. 14.

129Leviticus, xx. 6.

130Ibid.vii. 25.

131Ibid.vii. 27.

132Ibid.xviii. 19.

133Ibid.xviii. 6sqq.

134Laws of Manu, ix. 232.

135Ibid.ix. 280.

136Ibid.ix. 270.

137Ibid.ix. 277.

138Ibid.viii. 371sq.

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.139From 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.140Pocket-picking was punishable with death until the year 1808;141horse-stealing, cattle-stealing,sheep-stealing, stealing from a dwelling-house, and forgery, until 1832;142letter-stealing and sacrilege, until 1835;143rape, until 1841;144robbery with violence, arson of dwelling-houses, and sodomy, until 1861.145And not only was human life recklessly sacrificed, but the mode of execution was often exceedingly cruel. In the beginning of the fifteenth century, thePeine 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.146Burning alive of female offenders still occurred in England at the end of the eighteenth century,147being considered by the framers of the law as a commutation of the sentence of hanging required by decency.148Still 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.149This 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.”150Such 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.151In 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.

139Pollock and Maitland,op. cit.ii. 511.

140May,Constitutional History of England, ii. 595. Mackenzie,Studies in Roman Law, p. 424sq.

141Pike,History of Crime in England, ii. 450.

142Ibid.ii. 451. Stephen,History of the Criminal Law of England, i. 474.

143Pike,op. cit.ii. 451. Stephen,op. cit.i. 474.

144Stephen,op. cit.i. 475.

145Ibid.i. 475.

146For the manner in which this torture was inflicted, see Andrews,Old-Time Punishments, p. 203sq.

147Ibid.p. 198. Stephen,op. cit.i. 477.

148Andrews,op. cit.p. 192.

149Holinshed,Chronicles of England, &c.i. 310. Thomas Smith,Commonwealth of England, p. 198.

150Andrews,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).

151Stephen,op. cit.i. 478.Cf.Thomas Smith,op. cit.p. 193sq.

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

Among several uncivilised peoples capital punishment is said to be unknown or almost so.152Among 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.”153The Aleuts punished with death murderers and betrayers of community secrets.154In Samoa and New Guinea murder and adultery are punished capitally;155among the Bataks, open robbery and murder, provided that the offender is unable to redeem his life by a sum of money;156among the Kukis, only treason or an attempt at violence on the person of the King.157Among 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.158In Kar Nicobar the only cause for a “death penalty” that Mr. Distant could discover was madness.159Among the Soolimas “murder is the only crime punishable with death.”160Among the Congo natives “the only capital crimes are stated to be those of poisoning and adultery.”161Of 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.”;162Among the Wanika two crimes are visited with capital punishment—murder and an improper use of sorcery;163among the Wagogo164and Washambala,165witchcraft 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.166Among the Kafirs, cases of assault on the persons of wives of the chiefs,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

152von 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,’ inJournal des Museum Godeffroy, iv. 42 (Pelew Islanders). de Abreu,op. cit.p. 152 (Canary Islanders). Frisch,Die Eingeborenen Süd-Afrika’s, p. 322 (Hottentots).

153Cranz,op. cit.i. 177.

154Petroff,loc. cit.p. 152.

155Turner,Samoa, p. 178. Chalmers,Pioneering in New Guinea, p. 179.

156Marsden,op. cit.p. 389.

157Dalton,op. cit.p. 45. Stewart, inJour. As. Soc. Bengal, xxiv. p. 627.

158Griffith,ibid.vi. 332.

159Distant, inJour. Anthr. Inst.iii. 6.

160Laing,Travels, p. 365.

161Tucker,Expedition to Explore the River Zaire, p. 383.

162Bosman,op. cit.p. 331.

163New,op. cit.p. 111.

164Beverley, in Steinmetz,Rechtsverhältnisse, p. 215.

165Lang,ibid.p. 259.

166Casalis,op. cit.p. 228.

167Maclean,Compendium of Kafir Laws and Customs, p. 35sq.

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.”168Dr. 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.”169This story is not without interest when compared with the cold-blooded burning of female criminals and women suspected of witchcraft in Christian Europe.

168Yate,Account of New Zealand, p. 105.

169Codrington,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 observedto root up the evil plant at the commencement.”170According 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.”171In 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.”172Even 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.173In mediæval law-books determent is frequently referred to as an object of punishment.174And 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.

170Garcilasso de la Vega,op. cit.i. 151sq.

171Ta Tsing Leu Lee, p. lxvii.

172Laws of Manu, vii. 14, 15, 20-22, 24sq.

173Ibid.vii. 23.

174Leges 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.175A 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 nomeans uncommonly in mediæval manuscripts.”176In 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.177The 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

175Günther,Die Idee der Wiedervergeltung, i. 211sq.n. 31.

176Wright,History of Domestic Manners and Sentiments in England during the Middle Ages, p. 346.

177Holinshed,op. cit.i. 311. Blackstone,Commentaries on the Laws of England, iv. 201. Cox, ‘Hanging in Chains,’ inThe Antiquary, xxii. 213sq.

178Strutt,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 andprima facieinterpretation.179“Many of the laws seem designed to operate chieflyin 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.’”180In 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 inwhich sentence was passed; indeed, “not one in twenty of the sentences was carried into execution.”181This 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.”182Yet, 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

179Staunton, in his Preface toTa Tsing Leu Lee, p. xxvii.sq.

180Wells Williams,op. cit.i. 392sq.

181Stephen,op. cit.i. 471. May,op. cit.ii. 597.

182May,op. cit.ii. 597.

183Andrews,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.184It 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.”185But 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.

184Cf.Morrison,Crime and its Causes, p. 175.

185Bentham,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.186An act which is prohibitedby 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.

186This 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. 64sqq.), with which I became acquainted only when the present chapter was already in type. Montesquieu observes (De l’esprit des lois, vi. 9 [Œuvres, 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.”

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.187In Madagascar, also, “death was formerly inflicted for almost every offence.”188In Uganda the ordinary punishments were “death by fire, being hacked to pieces by reed splinters, fine, imprisonment in the stocksmvuba, or in theslaveforkkaligo, 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.”189Among 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.190In 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

187Ellis,Tshi-speaking Peoples of the Gold Coast, p. 166.

188Ellis,History of Madagascar, i. 374.

189Ashe,Two Kings of Uganda, p. 293.Cf.Wilson and Felkin,Uganda and the Egyptian Soudan, i. 201.

190Kollmann,Victoria Nyanza, p. 431.

191Ellis,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.192In 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.193Accordingto 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.”194In Rome the criminal law, which for a long time was characterised by great moderation,195gradually 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 calledaquæ 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.196In 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.197And the King was not only regarded as the fountain of social justice, but as the earthly representative of the heavenly lawgiver and judge.198

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