CUSTOMS AND LAWS AS EXPRESSIONS OF MORAL IDEAS
MORAL ideas are expressed in moral judgments. We have hitherto
examined the predicates of such judgments, the import and origin of
the moral concepts. Now a much wider field or research remains for us
to traverse. We shall direct our attention to the subjects of moral
judgments, to the mass of phenomena which, among different peoples and
in different ages, have had a tendency to call forth moral blame and
moral praise. We shall discuss the general characteristics which all
these phenomena have in common. We shall classify the most important
of them, and study the moral ideas held with reference to the
phenomena of each class separately. And in both cases we shall not
only analyse, but try to find an answer to the question, Why?--the
ultimate aim of all scientific research. But before entering upon this
vast undertaking, we must define the lines on which it is to be
conducted. How can we get an insight into the moral ideas of mankind
at large?
In answering this question I need not dwell upon such obvious means of
information as direct experience, or records of moral maxims and
sentiments found in proverbs, literary and philosophical works, and
religious codes. The sources which, from an evolutionary point of
view, are of the most comprehensive importance for our study, are
tribal and national customs and laws. It is to these sources that the
present chapter will be devoted.
{159} We have seen that a custom, in the strict sense of the word, is
not merely the habit of a certain circle of men, but at the same time
involves a moral rule. There is a close connection between these two
characteristics of custom: its habitualness and its obligatoriness.
Whatever be the foundation for a certain practice, and however trivial
it may be, the unreflecting mind has a tendency to disapprove of any
deviation from it for the simple reason that such a deviation is
unusual. As Abraham Tucker observes, "it is a constant argument among
the common people, that a thing must be done, and ought to be done,
because it always has been done."[1] Children show respect for the
customary,[2] and so do savages. "If you ask a Kaffir why he does so
and so, he will answer--'How can I tell? It has always been done by
our forefathers.'"[3] The only reason which the Eskimo can give for
some of their present customs, to which they adhere from fear of ill
report among their people, is that "the old Innuits did so, and
therefore they must."[4] In the behaviour of the Aleut, who "is
bashful if caught doing anything unusual among his people,"[5] and in
the average European's dread of appearing singular, we recognise the
influence of the same force of habit.
[Footnote 1: Tucker, _Light of Nature_, ii. 593. _Cf._ also Simmel,
_Einleitung in die Moralwissenschaft_, i. 65 _sqq._]
[Footnote 2: Sully, _Studies of Childhood_, p. 280 _sq._]
[Footnote 3: Leslie, _Among the Zulus and Amatongas_, p. 146.]
[Footnote 4: Hall, _Arctic Researches_, p. 569.]
[Footnote 5: Dall, _Alaska_, p. 396.]
On the other hand, it should be remembered that not every public habit
is a custom, involving an obligation; certain practices, though very
general in a society, may even be reprobated by almost every one of
its members. The habits of a people must therefore be handled with
discretion by the student of moral ideas. Yet when he has no reason to
conclude as to some special habit that it is held obligatory, he may,
probably always, be sure that it is either allowed, or, in spite of
all assurances of its wickedness, that the disapproval of it is not
generally very deep or genuine. In a community where lying is a {160}
prevailing vice, truthfulness cannot be regarded as a very sacred
duty; and where sexual immorality is widely spread, the public
condemnation of it always smacks of hypocrisy. Men's standard of
morality is not independent of their practice. The conscience of a
community follows the same rule as the conscience of an individual.
"Commit a sin twice," says the Talmud, "and you will think it
perfectly allowable."[6] Hence for the study of the inmost convictions
of a nation, its "bad habits" form a valuable complement to its
professed opinions.
[Footnote 6: Deutsch, _Literary Remains_, p. 58.]
The dictates of custom being dictates of morality, it is obvious that
the study of moral ideas will, to a large extent, be a study of
customs. But at the same time it should be borne in mind that custom
never covers the whole field of morality, and that the uncovered space
grows larger in proportion as the moral consciousness develops. Being
a rule of duty, custom may only indirectly be an expression of moral
approval, by claiming, in certain cases, that goodness should be
rewarded. But even when demanding praise, custom is not always a
reliable exponent of merit; it includes politeness, and politeness is
a great deceiver. Custom may compel us to praise a man for form's
sake, when he deserves no praise, and to thank him when he deserves no
thanks. Moreover, custom regulates external conduct only. It tolerates
all kinds of volitions and opinions if not openly expressed. It does
not condemn the heretical mind, but the heretical act. It demands that
under certain circumstances certain actions shall be either performed
or omitted, and, provided that this demand is fulfilled, it takes no
notice of the motive of the agent or omitter. Again, in case the
course of conduct prescribed by custom is not observed, the mental
facts connected with the transgression, if regarded at all, are dealt
with in a rough and ready manner, according to general rules which
hardly admit of individualisation. Yet the incongruity between custom
and morality which ensues from these circumstances is on {161} the
whole more apparent than real. It is rather an incongruity between
different moral standards. The unreflecting moral consciousness, like
custom, cares comparatively little for the internal aspect of conduct.
It does not ask whether a man goes to church on Sunday from a
religious motive or from fear of public opinion; it does not ask
whether he stays at home from love of ease or from dissent of belief
and avoidance of hypocrisy. It is ready to blame as soon as the
dictate of custom is disobeyed. The rule of custom is the rule of duty
at early stages of development. Only progress in culture lessens its
sway.
Finally, the moral ideas which are expressed in the customs of a
certain circle of men are not necessarily shared by every one of its
members. This may, in the present connection, be considered a matter
of slight importance by him who regards morality as "objectively"
realised in the customs of a people, and who denies the individual the
right to a private conscience. But from the subjective point of view
which I am vindicating, individual conviction has a claim to equal
consideration with public opinion, nay frequently, to higher respect,
representing as it does in many cases a higher morality, a moral
standard more purified by reflection and impartiality. At the lower
stages of civilisation, however, where a man is led by his feelings
more than by his thoughts, such a differentiation of moral ideas
hardly occurs. The opinions of the many are the opinions of all, and
the customs of a society are recognised as rules of duty by all its
members.
In primitive society custom stands for law, and even where social
organisation has made some progress it may still remain the sole rule
for conduct.[7] The authority of {162} a chief does not necessarily
involve a power to make laws. Even kings who are described as
autocrats may be as much tied by custom as is any of their
subjects.
[Footnote 7: Cranz, _History of Greenland_, i. 170. Dall, _op. cit._
p. 381 (Tuski). Dobrizhoffer, _Account of the Abipones_, p. 95.
Shooter, _Kafirs of Natal and the Zulu Country_, p. 101 _sq._ Holden,
_Past and Future of the Kaffir Races_, p. 336. Mungo Park, _Travels in
the Interior of Africa_, p. 16. Scaramucci and Giglioli, 'Notizie sui
Danakil,' in _Archivio per l'antropologia e la etnologia_, xiv. 39.
Earl, _Papuans_, p. 105 (Arru Islanders). Forbes, _A Naturalist's
Wanderings in the Eastern Archipelago_, p. 473 (Timorese). Dalton,
_Ethnology of Bengal_, p. 51 (Manipuris). Rockhill, _Land of the
Lamas_, p. 220 (Eastern Tibetans).]
The Rejangs of Sumatra "do not acknowledge a right in the chiefs to
constitute what laws they think proper, or to repeal or alter their
ancient usages, of which they are extremely tenacious and jealous."
There is no word in their language which signifies law, and the
chiefs, in pronouncing their decisions are not heard to say, "So the
law directs," but, "Such is the custom."[8] According to Ellis, "the
veneration of the Malagasy for the customs derived from tradition, or
any accounts of their ancestors . . . influences both their public and
private habits; and upon no individual is it more imperative than upon
their monarch, who, absolute as he is in other respects, wants either
the will or the power to break through the long-established
regulations of a superstitious people."[9] The king of Ashanti,
although represented as a despotic monarch, is nevertheless under an
obligation to observe the national customs which have been handed down
to the people from remote antiquity, and a practical disregard of this
obligation, in the attempt to change some of the old customs, cost one
of the kings his throne.[10] "The Africans," says Mr. Winwood Reade,
with special reference to Dahomey, "have sometimes their enlightened
kings, as the old barbarians had their sages and their priests. But it
is seldom in the power of the heads of a people to alter those customs
which have been held sacred from time immemorial."[11] The Basutos,
among whom "the chiefs have the right of making laws and publishing
regulations required by the necessities of the times," regard such
laws, or _molaos_, as inferior to the _mekhoas_, "the use and wont,"
which constitute the real laws of the country.[12] Among the ancient
Irish, there was no sovereign authority competent to enact a new law,
the function of the king being merely, as chief of the tribal
assembly, to see that the proper customs were observed.[13]
[Footnote 8: Marsden, _History of Sumatra_, p. 217.]
[Footnote 9: Ellis, _History of Madagascar_, i. 359.]
[Footnote 10: Beecham, _Ashantee and the Gold Coast_, p. 90 _sq._ _Cf._
Stuhlmann, _Mit Emin Pascha ins Herz von Afrika_, p. 523
(A-l[=u]r).]
[Footnote 11: Reade, _Savage Africa_, p. 52 _sq._]
[Footnote 12: Casalis, _Basutos_, p. 228.]
[Footnote 13: _Ancient Laws of Ireland_, iii. p. lxxxvi. _sq._ Cherry,
_Growth of Criminal Law_, p. 33.]
{163} In competition with law, custom frequently carries the day. In
India, especially in the South, "custom has always been to a great
extent superior to the written law."[14] In the Ramnad case, the
Judicial Committee expressly declared that, "under the Hindu system of
law, clear proof of usage will outweigh the written text of the
law."[15] It was also a maxim of the Roman jurists that laws may be
abrogated by desuetude or contrary usage;[16] and in modern times the
same doctrine is acted upon in Scotland.[17] Moreover, when a custom
cannot abrogate the law, it may still have a paralysing influence on
its execution. According to the laws of European nations, a man who
has killed another in a duel is to be treated as a homicide; yet
wherever the duel exists as a custom, the law against it is
ineffective. So it is on the Continent, and so it was in England in
the eighteenth century, when a well-informed writer could affirm that
he had "not found any case of an actual execution in England in
consequence of a duel fairly fought."[18] In this instance the
ineffectiveness of the law is owing to the fact that the law has not
been able to abolish an old custom. But the superiority of custom also
shows itself in cases where the law itself is getting antiquated, and
a new custom, enforced by public opinion, springs up in opposition to
it. Thus, contrary to law and earlier usage, it is nowadays the custom
of certain European countries that a sentence of death is not carried
into execution. Even "bad habits" tend to weaken the authority of the
law. Probably the two most prominent civil vices of the Chinese are
bribery and gambling. Against both these vices their penal code speaks
with no uncertain sound; and yet, according to {164} Professor
Douglas, it is no exaggeration to say that if the law were enforced,
it would make a clean sweep of ninety-nine of every hundred officials
in the empire.[19] Other illustrations of the same principle may be
found much nearer home.
[Footnote 14: Burnell, quoted by Nelson, _View of the Hind[=u] Law_,
p. 136.]
[Footnote 15: Mayne, _Treatise on Hindu Law and Usage_, p. 41.]
[Footnote 16: _Institutiones_, i. 2. 11. _Digesta_, i. 3. 32.]
[Footnote 17: Mackenzie, _Studies in Roman Law_, p. 54.]
[Footnote 18: Quoted by Bosquett, _Treatise on Duelling_, p. 80. _Cf._
_A Short Treatise upon the Propriety and Necessity of Duelling_,
printed at Bath in 1779. In 1808, however, Major Campbell was
sentenced to death and executed for killing Captain Boyd in a duel
(Storr, 'Duel,' in _Encyclopædia Britannica_, vii. 514).]
[Footnote 19: Douglas, _Society in China_, p. 82.]
Custom has proved stronger than law and religion combined. Sir Richard
Burton writes of the Bedouins, "Though the revealed law of the Koran,
being insufficient for the Desert, is openly disregarded, the
immemorial customs of the _Kazi al-Arab_ (the Judge of the Arabs) form
a system stringent in the extreme."[20] So, also, the Turkomans are
ruled, often tyrannised over, by a mighty sovereign, invisible indeed
to themselves, but whose presence is plainly discerned in the word
_deb_--"custom," "usage." Our authority adds:--"It is very remarkable
how little the 'Deb' has suffered in its struggle of eight centuries
with Mahommedanism. Many usages, which are prohibited to the Islamite,
and which the Mollahs make the object of violent attack, exist in all
their ancient originality."[21]
[Footnote 20: Burton, _Pilgrimage to Al-Madinah and Meccah_, ii. 87.]
[Footnote 21: Vámbéry, _Travels in Central Asia_, p. 310 _sqq._]
The laws themselves, in fact, command obedience more as customs than
as laws. A rule of conduct which, from one point of view, is a law, is
in most cases, from another point of view, a custom; for, as Hegel
remarks, "the valid laws of a nation, when written and collected, do
not cease to be customs."[22] There are instances of laws that were
never published, the knowledge and administration of which belonged to
a privileged class, and which nevertheless were respected and
obeyed.[23] And among ourselves the ordinary citizen stands in no need
of studying the laws under which he lives, custom being generally the
safe guiding star of his conduct. Custom, as Bacon said, is "the
principal magistrate of man's life,"[24] or, as the ancients put it,
"the king of all men."[25]
[Footnote 22: Hegel, _Philosophie des Rechts_, § 211, p. 199.]
[Footnote 23: Rein, _Japan_, p. 314.]
[Footnote 24: Bacon, 'Essay xxxix. Of Custom and Education,' in
_Essays_, p. 372.]
[Footnote 25: Herodotus, iii. 38.]
{165} Many laws were customs before they became laws. Ancient customs
lie at the foundation of all Aryan law-books. Mr. Mayne is of opinion
that Hindu law is based upon customs which existed even prior to and
independent of Brahmanism.[26] The Greek word [Greek: no/mos] means
both custom and law, and this combination of meanings was not owing to
poverty of language, but to the deep-rooted idea of the Greek people
that law is, and ought to be, nothing more and nothing less than the
outcome of national custom.[27] A great part of the Roman law was
founded on the _mores majorum_; in the Institutes of Justinian, it is
expressly said that "long prevailing customs, being sanctioned by the
consent of those who use them, assume the nature of Laws."[28] The
case was similar with the ancient laws of the Teutons and
Irish.[29]
[Footnote 26: Mayne, _op. cit._ p. 4.]
[Footnote 27: Ziegler, _Social Ethics_, p. 30. Schmidt, _Ethik der
alten Griechen_, i. 201.]
[Footnote 28: _Institutiones_, i. 2. 9.]
[Footnote 29: Joyce, _Social History of Ancient Ireland_, i. 181.]
The transformation of customs into laws was not a mere ceremony. Law,
like custom, is a rule of conduct, but, while custom is established by
usage and obtains, in a more or less indefinite way, its binding force
from public opinion, a law originates in a definite legislative act,
being set, as Austin says, by a sovereign person, or a sovereign body
of persons, to a person or persons in a state of subjection to its
author.[30] By becoming laws, then, the customs were expressly
formulated, and were enforced by a more definite sanction. It seems
that the process in question arose both from considerations of social
utility and from a sense of justice. Cicero observes that it was for
the sake of equity that "laws were invented, which perpetually spoke
to all men with one and the same voice."[31] From these points of view
it was neither necessary nor desirable that more than a limited set of
customs should pass into laws. There are customs which are too
indefinite to assume the stereotyped shape of law.[32] There are
others, the breach {166} of which excites too little public
indignation, or which are of too little importance for the public
welfare, to be proper objects of legislation. And there are others
which may be said to exist unconsciously, that is, which are
universally observed as a matter of course, and which, never being
transgressed, are never thought of.
[Footnote 30: Austin, _Lectures on Jurisprudence_, i. 87, 181, &c.]
[Footnote 31: Cicero, _De officiis_, ii. 12.]
[Footnote 32: _Cf._ Aristotle, _Ethica Nicomachea_, v. 10. 6.]
Laws which are based on customs naturally express moral ideas
prevalent at the time when they are established. On the other hand,
though still in existence, they are not necessarily faithful
representatives of the ideas of a later age. Law may be even more
conservative than custom. Though the latter exercises a very
preservative influence on public opinion, it _eo ipso_ changes when
public opinion changes. Even among savages, in spite of their extreme
regard for the customs of their ancestors, it is quite possible for
changes to be introduced; the traditions of the Central Australian
Arunta, for instance, indicate their own recognition of the fact that
customs have varied from time to time.[33] But the legal form gives to
an ancient custom such a fixity as to enable it to survive, as a law,
the change of public opinion and the introduction of a new custom. In
all progressive societies, as Sir Henry Maine observes, social
necessities and social opinion are always more or less in advance of
law. "We may come indefinitely near to the closing of the gap between
them, but it has a perpetual tendency to re-open."[34]
[Footnote 33: Spencer and Gillen, _Native Tribes of Central
Australia_, p. 12 _sqq._]
[Footnote 34: Maine, _Ancient Law_, p. 24.]
The moral ideas of a people are less extensively represented in its
laws than in its customs. This is a corollary of the fact that there
are always a great number of customs which never become laws.
Moreover, whilst law, like custom, directly expresses only what is
obligatory, it hardly ever deals with merit, even indirectly. The
Chinese have a method of rewarding and commemorating meritorious and
virtuous subjects by erecting gates in their honour, and conferring
upon them marks of public distinction;[35] {167} and the Japanese and
Coreans award prizes in the form of money or silver cups or monumental
columns to signal exemplars of filial piety, arguing that, if the law
punishes crime, it ought also to reward virtue.[36] In Europe we have
titles and honours, pensions for distinguished service, and the like;
but the distribution of them is not regulated by law, and has often
little to do with morality.
[Footnote 35: de Groot, _Religious System of China_ (vol. ii. book) i.
769, 789 _sq._]
[Footnote 36: Griffis, _Corea_, p. 236.]
Law, like custom, only deals with overt acts, or omissions, and cares
nothing for the mental side of conduct, unless the law be
transgressed. Yet, as will be seen subsequently, though this
constitutes an essential difference between law and the enlightened
moral consciousness, it throws considerable light on the moral
judgments of the unreflecting mind.
Being a general, and at the same time a strictly defined, rule of
conduct, a law can even less than a custom make special provision for
every case so as to satisfy the demand of justice. This disadvantage,
however, was hardly felt in early periods of legislation, when little
account was taken of what was behind the overt act; and at later
stages of development, the difficulty was overcome by leaving greater
discretion to the judge. The history of legal punishments in England,
for instance, shows a change from a system which, except in cases of
misdemeanour, left no discretion at all to judges, to a system under
which unlimited discretion is left to them in all cases except those
which are still liable to capital punishment--practically, high
treason and murder.[37] The study of law, then, must for our purpose
be supplemented by the study of judicial practice.
[Footnote 37: Stephen, _History of the Criminal Law of England_, ii. 87.]
Laws which represent public opinion are no more than customs safe
exponents of the moral ideas held by particular members of the
society. But on the other hand, there are cases in which a law, unlike
a custom, may express the ideas, or simply the will, of a few, or even
of {168} a single individual, that is, of the sovereign power only. It
is obvious that laws imposed upon a barbarous people by civilised
legislators may differ widely from the people's own ideas of right and
wrong. For instance, when studying the moral sentiments of the
Teutonic peoples from their early law-books, we must carefully set
aside all elements of Roman or Christian origin. At the same time,
however, it should be remembered that the moral consciousness of a
people may gradually be brought into harmony with a law originally
foreign to it. If the law is in advance of public opinion--as Roman
law undoubtedly was in Teutonic countries--it may raise the views of
the people up to its own standard by awaking in them dormant
sentiments, or by teaching them greater discrimination in their
judgments. And, as has been already noticed, what is forbidden and
punished may, for the very reason that it is so, come to be regarded
as wrong and worthy of punishment.
Finally, a law may enjoin or forbid acts which by themselves are
regarded as indifferent from a moral point of view. This is, for
instance, the case with the laws which require marriages to be
celebrated at certain times and places only, and which forbid the
cultivation of tobacco in England. Jurists divide crimes into _mala in
se_ and _mala quia prohibita_. The former would be wrong even if they
were not prohibited by law, the latter are wrong only because they are
illegal.
A law expresses a rule of duty by making an act or omission which is
regarded as wrong a crime, that is, by forbidding it under pain of
punishment. Law does not in all cases directly threaten[38] with
punishment--I say directly, since all law is coercive, and all
coercion at some stage involves the possibility of punishment.[39]
Sanctions, or the consequences by which the sovereign political
authority threatens to enforce the laws set by it, may {169} have in
view either the indemnification of the injured party, or the suffering
of the injurer. In the latter case the sanctions are called
punishments. But, though highly important, the distinction between
indemnification and punishment is not absolute. A person who causes
harm to another would hardly have to pay damages unless some kind of
guilt or quasi-guilt were imputed to him; and, on the other hand,
punishment may actually consist in the damages he has to pay.
Moreover, the suffering involved in punishment must be regarded as a
kind of indemnification in so far as it is intended to gratify the
injured party's craving for revenge. The pleasure of vengeance, says
Bentham, "is a gain; it calls to mind Samson's riddle--it is sweet
coming out of the terrible, it is honey dropping from the lion's
mouth."[40] In cases where the injured party is allowed to decide
whether the injurer shall be punished or not, or what punishment
(within certain limits) shall be inflicted upon him, it is obvious
that punishment is largely looked upon as a means of indemnification.
However, the fact that such a privilege is granted to the injured
party indicates the existence of some degree of sympathetic resentment
in the public. Punishment, in all its forms, is essentially an
expression of indignation in the society which inflicts it.[41] Hence
it is of extreme importance for the study of moral ideas, and calls
for our careful consideration.
[Footnote 38: "Not every sovereign can make sure of enforcing his
commands; and sometimes laws are made without even any great intention
of enforcing them" (Pollock, _Essays in Jurisprudence and Ethics_,
p. 9 _sq._).]
[Footnote 39: _Cf._ Stephen, _op. cit._ i. 2.]
[Footnote 40: Bentham, _Theory of Legislation_, p. 309.]
[Footnote 41: "Die Missbilligung ist das Wesentliche aller Strafe"
(von Bar, _Die Grundlagen des Strafrechts_, p. 4). "La peine consiste
dans une réaction passionnelle d'intensité graduée" (Durkheim,
_Division du travail social_, p. 96).]
By punishment I do not understand here every suffering inflicted upon
an offender in consequence of his offence, but only such suffering as
is inflicted upon him in a definite way by, or in the name of, the
society of which he is a permanent or temporary member. This
definition holds good whatever may be the opinion about the final
object of punishment. Whether its purpose is, or is supposed to be,
either reformation, or determent, or retribution, its immediate aim is
always to cause suffering. {170} We should not call it punishment if
the reformation of the criminal were attempted, say, by means of
hypnotism.
It is a common opinion that punishment, in this sense of the word, is
a social institution of comparatively modern origin, which has sprung
from, and gradually superseded, the earlier custom of individual or
family revenge. This opinion may seem plausible to the student of
European and Eastern law, but, as we shall see, the early history of
civilised races is apt to give a somewhat erroneous idea of the
evolution of punishment. Even among savages public indignation
frequently assumes that definite shape which constitutes the
difference between punishment and mere condemnation.[42]
[Footnote 42: See Steinmetz, _Ethnologische Studien zur ersten
Entwicklung der Strafe_, ii. 327 _sqq._; Makarewicz, _Évolution de la
peine_, _passim_.]
Savage punishment sometimes simply consists in publicly putting the
offender to shame.
In Greenland the courts of justice were the public assemblies,
which at the same time supplied the national sports and
entertainments. Here "nith-songs" were used for settling all sorts of
crimes or breaches of public order or custom, with the exception of
those which could only be expiated by death; by means of cutting
capers and singing, the offender was told of his faults, and the
opposite virtues were praised to all who were present.[43] The same
institution is found, with only incidental differences, among several
other tribes within and beyond the Arctic circle.[44] And, knowing the
sensitiveness of these peoples, we may assume that the punishment in
question is by no means lenient. In Greenland "it now and then happens
that some one or other, wounded, perhaps, by a single word from one of
his kinsfolk, runs away to the mountains, and is lost for several days
at least."[45] And Adair, speaking of the public jesting by which
North American Indians used to punish young people who were guilty of
petty crimes, says that "they would sooner die by torture, than renew
their shame by repeating the actions."[46]
[Footnote 43: Rink, _Eskimo Tribes_, p. 24 _sq._ _Idem_, _Greenland_,
pp. 141, 150. Cranz, _op. cit._ i. 165 _sq._ Holm, 'Ethnologisk Skizze
af Angmagsalikerne,' in _Meddelelser om Grönland_, p. 87.]
[Footnote 44: Kane, _Arctic Explorations_, ii. 128 _sq._]
[Footnote 45: Nansen, _Eskimo Life_, p. 267 _sq._]
[Footnote 46: Adair, _History of the American Indians_, p. 429 _sq._]
{171} In other instances the community as a whole expresses its
indignation by inflicting suffering of a more material kind upon the
culprit.
In certain Australian tribes, when a native for any transgression
incurs the displeasure of his tribe, custom compels him to "stand
punishment," as it is called; that is, he stands with a shield at a
fair distance, while the whole tribe, either simultaneously or in
rapid succession, cast their spears at him. Their expertness generally
enables those who are exposed to this trial to escape without serious
injury, though instances of a fatal result occasionally occur;
however, there is a certain propriety even in this extraordinary
punishment, as the accuracy and force with which the weapons are
thrown will depend very much on the opinion entertained of the
enormity of the offence.[47] Among the North-West-Central Queensland
aborigines, though each individual, within certain limits, can do what
he pleases, "he has to reckon not only with the particular person
injured, or his relatives, but also, in some cases, with the whole
camp collectively. Thus the camp as a body, as a camp council, will
take upon itself to mete out punishment in crimes of murder, incest,
or the promiscuous use of fighting-implements within the precincts of
the camping-ground: death, and probably the digging of his own grave,
awaits the delinquent in the former case, while 'crippling,' generally
with knives, constitutes the penalty for a violation of the latter."
Again, if a woman makes herself obnoxious in the camp, especially to
the female portion of it, she is liable to be set upon and "hammered"
by her fellow-sisters collectively, the men on such occasions not
interfering.[48] Among the Bangerang tribe of Victoria, "any one who
had suffered a wrong complained of it, if at all, at night aloud to
the camp, which was silent and attentive. Then the accused was heard.
Afterwards those who chose, men or women, expressed their views on the
subject; and if general opinion pronounced the grievance a good one,
the accused accepted the penalty sanctioned by custom."[49] Among
various tribes in Western Victoria, "should a person, through bad
conduct, become a constant anxiety and trouble {172} to the tribe, a
consultation is held, and he is put to death."[50] Among the Mpongwe,
if a man murders another, he is put to death, not by the nearest of
kin, but by the whole community, being either drowned or burned
alive.[51] Among the Hudson Bay Eskimo, "when a person becomes so bad
in character that the community will no longer tolerate his presence
he is forbidden to enter the huts, partake of food, or hold any
intercourse with the rest. Nevertheless, as long as he threatens no
one's life, but little attention is paid to him. Should he be guilty
of a murder, several men watch their opportunity to surprise him and
put him to death, usually by stoning. The executioners make no
concealment of their action and are supported by public opinion in the
community."[52]
[Footnote 47: Hale, _U.S. Exploring Expedition. Vol. VI. Ethnography
and Philology_, p. 114. _Cf._ Eyre, _Journals of Expeditions of
Discovery into Central Australia_, ii. 388; Collins, _English Colony
in New South Wales_, i. 586; Brough Smyth, _Aborigines of Victoria_,
ii. 295.]
[Footnote 48: Roth, _Ethnological Studies among the North-West-Central
Queensland Aborigines_, pp. 139, 141. Curr, _The Australian Race_,
i. 61 _sq._]
[Footnote 49: Curr, _Squatting in Victoria_, p. 245.]
[Footnote 50: Dawson, _Australian Aborigines_, p. 76.]
[Footnote 51: Burton, _Two Trips to Gorilla Land_, i. 105.]
[Footnote 52: Turner, 'Ethnology of the Ungava District,' in _Ann.
Rep. Bur. Ethn._ xi. 186.]
Among various savage peoples expulsion from the tribe is the
punishment of persons whose conduct excites great public indignation,
and among others such persons are outlawed.
The Chippewyans, among whom "order is maintained in the tribe
solely by public opinion," the chief having no power to punish crimes,
occasionally expel from the society individuals whose conduct is
exceptionally bad and threatens the general peace.[53] The Salish, or
flathead Indians, sometimes punished notorious criminals by expulsion
from the tribe or band to which they belonged.[54] Sir E. F. Im Thurn,
whilst praising the Indians of Guiana for their admirable morality as
long as they remain in a state of nature, adds that there are
exceptions to the rule, and that such individuals "are soon killed or
driven out from their tribe."[55] Among the Bedouins of the Euphrates,
"in extreme cases, and as the utmost penalty of the law, the offender
is turned out of the tribe";[56] and the same is the case among the
Beni Mzab.[57] In the Scotch Highlands, even to this day, instances
are common of public opinion operating as a punishment, to the extent
of forcing individuals into exile.[58] There are cases reported from
various parts of the savage world of banishment being inflicted as a
punishment for sexual {173} offences;[59] and other instances of
expulsion are mentioned by Dr. Steinmetz.[60] In some cases, however,
expulsion is to be regarded rather as a means of ridding the community
from a pollution, than as a punishment in the proper sense of the
term.[61]
[Footnote 53: Richardson, _Arctic Searching Expedition_, ii. 26 _sq._]
[Footnote 54: Hale, _op. cit._ p. 208.]
[Footnote 55: Im Thurn, _Among the Indians of Guiana_, p. 213.]
[Footnote 56: Blunt, _Bedouin Tribes of the Euphrates_, ii. 206.]
[Footnote 57: Chavanne, _Sahara_, p. 315. Tristram, _Great Sahara_,
p. 207.]
[Footnote 58: Stewart, _Highlanders of Scotland_, p. 380.]
[Footnote 59: Westermarck, _History of Human Marriage_, p. 61
_sqq._]
[Footnote 60: Steinmetz, _op. cit._ ii. ch. 5.]
[Footnote 61: See _infra_, on Homicide.]
Nearly related to the punishment of expulsion is that of outlawry.
Von Wrede states that the Bedouins of [H.]adhramaut give a respite of
three days to the banished man, and that after the lapse of this
period every member of the tribe is allowed to kill him.[62] Among the
Wyandots the lowest grade of outlawry consists in a declaration that,
if the offender shall continue in the commission of crimes similar to
that of which he has been guilty, it will be lawful for any person to
kill him, whilst outlawry of the highest degree makes it the duty of
any member of the tribe who may meet with the offender to kill
him.[63] Among the ancient Teutons, also, outlawry was originally a
declaration of war by the commonwealth against an offending member,
and became only later on a regular means of compelling submission to
the authority of the courts.[64]
[Footnote 62: von Wrede, _Reise in [H.]adhramaut_, p. 51.]
[Footnote 63: Powell, 'Wyandot Government,' in _Ann. Rep. Bur. Ethn._
i. 68.]
[Footnote 64: Pollock and Maitland, _History of English Law before the
time of Edward I._ i. 49.]
Most generally, however, punishment is inflicted upon the culprit, not
by the whole of the community, but by some person or persons invested
with judicial authority. Indeed, it is not only civilised races who
have judges and courts of justice. Among savages and barbarians
justice is very frequently administered by a council of elders or by a
chief.[65] Even people of so low a type as the Australian aborigines
have their tribunals.
[Footnote 65: Petroff, 'Report on Alaska,' in _Tenth Census of the
United States_, p. 152 (Aleuts). Morgan, _League of the Iroquois_, p.
330. Powell, in _Ann. Rep. Bur. Ethn._ i. 63, 66 _sq._ (Wyandots).
_Idem_, 'Sociology,' in _American Anthropologist_, N.S. i. 706 (North
American tribes). Schoolcraft, _Indian Tribes of the United States_,
i. 277 (Creeks). von Martius, _Beiträge zur Ethnographie Amerika's_,
i. 88 (Brazilian Indians). Cook, _Journal of a Voyage round the
World_, p. 41 (Tahitians). Lister, in _Jour. Anthr. Inst._ xxi. 54
(Bowditch Islanders). Codrington, _Melanesians_, p. 345 (Solomon
Islanders). Hunt, in _Jour. Anthr. Inst._ xxviii. 6 (Murray
Islanders). Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xiv. 448;
Senfft, in Steinmetz, _Rechtsverhältnisse_, p. 448; Kubary, 'Die
Ebongruppe im Marshall's Archipel,' in _Journal des Museum Godeffroy_,
i. 37 (Marshall Islanders). _Idem_, _Ethnographische Beiträge zur
Kenntniss der Karolinischen Inselgruppe_, p. 73 _sqq._; _Idem_, 'Die
Palau-Inseln,' in _Journal des Museum Godeffroy_, iv. 42 (Pelew
Islanders). von Kotzebue, _Voyage of Discovery_, iii. 208 (Caroline
Islanders). Worcester, _Philippine Islands_, p. 107 (Tagbanuas of
Palawan). Marsden, _History of Sumatra_, p. 217 (Rejangs). von
Brenner, _Besuch bei den Kannibalen Sumatras_, p. 211 (Bataks).
Forbes, _A Naturalist's Wanderings in the Eastern Archipelago_, p. 243
(Kubus of Sumatra). Man, _Sonthalia_, p. 88 _sq._ Cooper, _Mishmee
Hills_, p. 238. Macpherson, _Memorials of Service in India_, p. 83
(Kandhs). Stewart, in _Jour. As. Soc. Bengal_, xxiv. 609, 620 (Nagas,
Old Kukis). Dalton, _Ethnology of Bengal_, p. 45 (Kukis). Forsyth,
_Highlands of Central India_, p. 361 (Bygás). Shortt, in _Trans. Ethn.
Soc._ N.S. vii. 241 (Todas). Batchelor, _Ainu and their Folk-Lore_, p.
278; von Siebold, _Die Aino auf der Insel Yesso_, p. 34. From Africa a
great number of instances might be quoted, _e.g._:--Nachtigal, _Sahara
und Sudan_, i. 449 (Tedâ). Petherick, _Egypt, the Soudan, and Central
Africa_, p. 320 (Nouaer tribes). Beltrame, _Il Fiume Bianco_, p. 77
(Shilluk). Laing, _Travels in the Timannee, &c. Countries_, p. 365
(Soolimas). Mungo Park, _Travels in the Interior of Africa_, p. 15
_sq._ (Mandingoes). Leuschner, in Steinmetz, _Rechtsverhältnisse_, p.
22 (Bakwiri). _Ibid._ p. 47 (Banaka and Bapuku). Tellier, _ibid._ p.
175 (Kreis Kita, in the French Soudan). Bosman, _New Description of
the Coast of Guinea_, p. 331 (Negroes of Fida). Casati, _Ten Years in
Equatoria_, p. 158, 163 (Akkas, Mambettu). Stuhlmann, _Mit Emin Pascha
ins Herz von Africa_, p. 523 (A-l[=u]r). _Emin Pasha in Central
Africa_, p. 89 (Wanyoro). Baskerville, in Steinmetz, _Rechtsverhältnisse_,
p. 193 (Waganda). Beverley, _ibid._ p. 214 (Wagogo). Lang, _ibid._ p.
253 _sqq._ (Washambala). Desoignies, _ibid._ p. 279 _sq._ (Msalala).
Decle, _Three Years in Savage Africa_, pp. 71, 73, 74, 487 (Barotse,
Wakamba). Junod, _Les Ba-Ronga_, p. 155 _sq._ Burton, _Zanzibar_, ii.
94 (Wanika). Holub, _Seven Years in South Africa_, ii. 319 (Marutse).
Kohler, in _Zeitschr. f. vergl. Rechtswiss._ xiv. 316 (Herero).
Andersson, _Lake Ngami_, p. 197 (Ovambo). Rautanen, in Steinmetz,
_Rechtsverhältnisse_, p. 340 (Ondonga). Kolben, _Present State of the
Cape of Good Hope_, p. 86, 297 (Hottentots). Kohler, in _Zeitschr. f.
vergl. Rechtswiss._ xv. 333 (Bechuanas). Casalis, _Basutos_, pp. 224,
226. Maclean, _Compendium of Kafir Laws and Customs_, pp. 35, 110.
Holden, _Past and Future of the Kaffir Races_, pp. 333, 336. Shooter,
_Kafirs of Natal_, p. 99 _sq._]
{174} Speaking of the native tribes of Central Australia, Messrs.
Spencer and Gillen observe:--"Should any man break through the strict
marriage laws, it is not only an 'impersonal power' which he has to
deal with. The head men of the group or groups concerned consult
together with the elder men, and, if the offender, after long
consultation, be adjudged guilty and the determination be arrived at
that he is to be put to death--a by no means purely hypothetical
case--then the same elder men make arrangements to carry the sentence
out, and a party, which is called an _ininja_, is organised for the
purpose."[66] We hear of similar councils from various parts of the
Australian continent. In his description of the aborigines of New
South Wales, Dr. Fraser states, "The Australian council of old and
experienced men--this aboriginal senate and witenagemot--has the power
to decree punishment for tribal offences." The chiefs sit as
magistrates to decide all cases which are brought before them, such as
the divulging of sacred things, speaking to a mother-in-law, the
adultery of a wife; and there is even a {175} tribal executioner. At
the same time, many grievances are arranged without the intervention
of the chiefs; for instance, if a man has been found stealing from his
neighbour, or two men quarrel about a woman, a fight ensues, the one
or the other gets his head broken, and there the matter ends.[67] The
Narrinyeri have a judgment council of the elders of the clan, called
_tendi_, which is presided over by the chief of the clan; and when any
member of the _tendi_ dies, the surviving members select a suitable
man from the clan to succeed him. "All offenders are brought to this
tribunal for trial. In cases of the slaying by a person or persons of
one clan of the member of another clan in time of peace, the
fellow-clansmen of the murdered man will send to the friends of the
murderer and invite them to bring him to trial before the united
_tendies_. If, after full inquiry, he is found to have committed the
crime, he will be punished according to the degree of guilt."[68]
Among another Australian tribe, the Gournditch-mara, again, the
headman, whose office was hereditary, "settled all quarrels and
disputes in the tribe. When he had heard both sides, and had given his
decision in a matter, no one ever disputed it."[69]
[Footnote 66: Spencer and Gillen, _op. cit._ p. 15.]
[Footnote 67: Fraser, _Aborigines of New South Wales_, p. 39.]
[Footnote 68: Taplin, 'Narrinyeri,' in Woods, _Native Tribes of South
Australia_, p. 34 _sq._]
[Footnote 69: Fison and Howitt, _Kamilaroi and Narrinyeri_, p. 277.]
Among the Australian aborigines, then, we find cases in which
punishment is inflicted by the whole community, and other cases in
which it is inflicted by a tribunal or a chief. There can be little
doubt that the latter system has developed out of the former; there
are obvious instances of transition from the one to the other. Among
the North-West-Central Queensland natives, for instance, in cases of
major offences, such as murder, incest, or physical violence, the old
men are only said to "influence" aboriginal public opinion.[70] It is
an inconvenient, and in larger communities a difficult, procedure for
the whole group to inflict punishments in common, hence the
administration of justice naturally tends to pass into the hands of
the leading men or the chief. But the establishment of a judicial
authority within the society may also have a different origin. Very
frequently judicial organisation {176} seems to have developed, not
out of a previous system of lynch-law, but out of a previous system of
private revenge.
[Footnote 70: Roth, _op. cit._ p. 141.]
An act of individual or family revenge is by itself, of course, an
expression of private, not of public, feelings--of revenge, not of
moral indignation. But the case is different with the _custom_ of
revenge. We shall see in a following chapter that blood-revenge is
regarded not only as a right, but, very frequently, as a duty
incumbent upon the relatives of the slain person. So, also, revenge
may be deemed a duty in cases where there is no blood-guiltiness.
Among the Australian Geawe-gal tribe, for instance, the offender,
according to the magnitude of his offence, was to receive one or more
spears from men who were relatives of the deceased person; or the
injured man himself, when he had recovered strength, might discharge
the spears at the offender. And our authority adds, "Obedience to such
laws was never withheld, but would have been enforced, without doubt,
if necessary, by the assembled tribe."[71] The obligatory character of
revenge implies that its omission is disapproved of. It is of course
the man on whom the duty of vengeance is incumbent that is the
immediate object of blame, when this duty is omitted; and the blame
may partly be due to contempt, especially when there is a suspicion of
cowardice. But behind the public censure there is obviously a desire
to see the injurer suffer. Instances may be quoted in which the
society actually assists the avenger, in some way or other, in
attaining his object. Speaking of the Fuegians, M. Hyades
observes:--"Nous avons entendu parler d'individus coupables de meurtre
sur leur femme, par exemple, et qui, poursuivis par tout un groupe de
familles, finissaient, quelquefois un an ou deux après leur crime, par
tomber sous les coups des parents de la victime. Il s'agit là plutôt
d'un acte de justice que d'une satisfaction de vengeance. Nous devons
faire remarquer en outre que, dans ces cas, le meurtrier est abandonné
de tous, et qu'il ne peut se soustraire que pendant un temps {177}
relativement assez court au châtiment qui le menace."[72] Amongst the
Central Eskimo, who have "no punishment for transgressors except the
blood vengeance," a man has committed a murder or made himself odious
by other outrages, "he may be killed by any one simply as a matter of
justice. The man who intends to take revenge on him must ask his
countrymen singly if each agrees in the opinion that the offender is a
bad man deserving death. If all answer in the affirmative he may kill
the man thus condemned, and no one is allowed to revenge the
murder."[73] Among the Greenlanders, in cases of extreme atrocity, the
men of a village have been known to make common cause against a
murderer, and kill him, though it otherwise is the business of the
nearest relatives to take revenge.[74] It is also noteworthy that,
among the crimes which in savage communities are punished by the
community at large, incest is particularly prominent. The chief reason
for this I take to be the absence of an individual naturally
designated as the avenger.
[Footnote 71: Fison and Howitt, _op. cit._ p. 282.]
[Footnote 72: Hyades and Deniker, _Mission scientifique du Cap Horn_,
vii. 240 _sq._]
[Footnote 73: Boas, 'Central Eskimo,' in _Ann. Rep. Bur. Ethn._ vi. 582.]
[Footnote 74: Nansen, _Eskimo Life_, p. 163.]
Thus public indignation displays itself not only in punishment, but,
to a certain extent, in the custom of revenge. In both cases the
society desires that the offender shall suffer for his deed. Strictly
speaking, the relationship between the custom of revenge and
punishment is not, as has been often supposed, that between parent and
child. It is a collateral relationship. They have a common ancestor,
the feeling of public resentment.
But whilst public opinion demands that vengeance shall be exacted for
injuries, it is also operative in another way. Though in some cases
the resentment may seem to outsiders to be too weak or too much
checked by other impulses, it may in other cases appear unduly great.
As a matter of fact, we frequently find the practice of revenge being
regulated by a rule which requires equivalence between the injury and
the suffering inflicted in return for {178} it. Sometimes this rule
demands that only one life shall be taken for one;[75] sometimes that
a death shall be avenged on a person of the same rank, sex, or age as
the deceased;[76] sometimes that a murderer shall die in the same
manner as his victim;[77] sometimes that various kinds of injuries
shall be retaliated by the infliction of similar injuries on the
offender.[78] This strict equivalence is not characteristic of
resentment as such.[79] There is undoubtedly a certain proportion
between the pain-stimulus and the reaction; other things being equal,
resentment increases in intensity along with the pain by which it is
excited. The more a person feels offended, the greater is his desire
to retaliate by inflicting counter-pain, and the greater is the pain
which he desires to inflict. But resentment involves no accurate
balancing of suffering against suffering, hence there may be a crying
disproportion between the act of revenge and the injury evoking
it.[80] As Sir Thomas Browne observes, a revengeful mind "holds no
rule in retaliations, requiring too often a head for a tooth, and the
supreme revenge for trespasses, which a night's rest should
obliterate."[81] If, then, the rule of {179} equivalence is not
suggested by resentment itself, this rule must be due to other
factors, which intermingle with resentment, and help, with it, to
determine the action. One of these factors, I believe, is
self-regarding pride, the desire to pull down the humiliating
arrogance of the aggressor naturally suggesting the idea of paying him
back in his own coin; and it seems probable that the natural
disposition to imitate, especially in cases of sudden anger, acts in
the same direction. But besides this qualitative equivalence between
injury and retaliation, the _lex talionis_ requires, in a rough way,
quantitative equivalence, and this demand has no doubt a social
origin. If the offender is a person with whose feelings men are ready
to sympathise, their sympathy will keep the desire to see him suffer
within certain limits; and if, under ordinary circumstances, they tend
to sympathise equally with both parties, the injurer and the person
injured, and, in consequence, confer upon these equal rights, they
will demand a retaliation which is only equal in degree to the
offence. By suffering a loss the offender compensates, as it were, for
the loss which he has inflicted; and when equal regard is paid to his
feelings and to those of his victim, it is deemed just that the loss
required of him as a compensation should be equivalent to the loss for
which he compensates, anything beyond equivalence being regarded as
undeserved suffering. If this explanation is correct, the rule of
equivalence must originally have been restricted to offences within
the social group; for, according to early custom and law, only members
of the same society have equal rights. In speaking of the tit-for-tat
system prevalent among the Guiana Indians, Sir E. F. Im Thurn
expressly says, "Of course all this refers chiefly to the mutual
relations of members of the same tribe."[82] And when we find savages
acting according to the same principle in their relations to other
tribes, the reason for this may be sought partly in the strong hold
which that principle has taken of their minds, and partly in the
dangers accompanying intertribal revenge, {180} which make it
desirable to restrict it within reasonable limits.
[Footnote 75: Krause, _Tlinkit-Indianer_, p. 245 _sq._ Macfie,
_Vancouver Island and British Columbia_, p. 470. Foreman, _Philippine
Islands_, p. 213 (Negrito and Igorrote tribes in the province of La
Isabela). Low, _Sarawak_, p. 212 (Dyaks). von Langsdorf, _Voyages and
Travels_, i. 132 (Nukahivans).]
[Footnote 76: Jagor, _Travels in the Philippines_, p. 213 (Igorrotes).
Blumentritt, quoted by Spencer, _Principles of Ethics_, i. 370 _sq._
(Quianganes of Luzon). Munzinger, _Ostafrikanische Studien_, p. 243
(Marea). _Koran_, ii. 173.]
[Footnote 77: von Martius, _op. cit._ i. 129 (Brazilian Indians).
Wallace, _Travels on the Amazon_, p. 499 (Uaupés). Schoolcraft,
_Indian Tribes of the United States_, iii. 246 (Dacotahs). Steller,
_Kamtschatka_, p. 355; Hickson, _A Naturalist in North Celebes_, p.
198 (Sangirese of Manganitu). Fraser, _Journal of a Tour through Part
of the Him[=a]l[=a] Mountains_, p. 339 (Butias). Ellis, _History of
Madagascar_, i. 371. Munzinger, _op. cit._ p. 502 (Barea and Kunáma).
de Abreu, _Canary Islands_, p. 27 (aborigines of Ferro).]
[Footnote 78: Im Thurn, _op. cit._ p. 213 _sq._ (Guiana Indians).
_Glimpses of the Eastern Archipelago_, p. 86 (Bataks). Arbousset and
Daumas, _Tour to the North-East of the Colony of Good Hope_, p. 67
(Mantetis). Munzinger, _op. cit._ p. 502 (Barea and Kunáma). Post,
_Afrikanische Jurisprudenz_, p. 27 (various other African peoples), de
Abreu, _op. cit._ p. 71 (aborigines, of Gran Canaria).]
[Footnote 79: _Cf._ Tissot, _Le droit pénal_, i. 226; Steinmetz,
_Ethnol. Studien zur ersten Entwicklung der Strafe_, i. 401;
Makarewicz, _op. cit._ p. 13.]
[Footnote 80: von Martius, _op. cit._ i. 128 (Brazilian aborigines).
Calder, in _Jour. Anthr. Inst._ iii. 21 (Tasmanians). Forbes, _A
Naturalist's Wanderings in the Eastern Archipelago_, p. 473
(Timorese). Sarasin, _Forschungen auf Ceylon_, iii. 539 (Veddahs).
Jacob, _Das Leben der vorislâmischen Beduinen_, p. 144 _sq._]
[Footnote 81: Browne, _Christian Morals_, iii. 12, p. 94.]
[Footnote 82: Im Thurn, _op. cit._ p. 214.]
The regulations to which the practice of revenge is subject, help us
to understand the transition from revenge to punishment, and the
establishment of a special judicial authority. As long as retaliation
is in the hands of private individuals, there is no guarantee, on the
one hand, that the offender will have to suffer, on the other hand,
that the act of retaliation will be sufficiently discriminate.
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.