2

others he acts merely as an adviser, or is appealed to as an arbiter; or the injured party may choose between avenging himself and appealing to the chief for redress; or the judicial power with which the chief is invested is stated to be more nominal than real. It is also interesting to note that in several cases the injured party or the accuser acts as executioner, but not as judge.

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." 4 Among the Aricara Indians of the Missouri, who, for the most part, punished murder with death, the nearest relative of the murdered man was deputed by the council to act the part of executioner. 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." 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." 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

7

Ar

1 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. bousset and Daumas, op. cit. p. 67 (Mantetis). Ellis, Yoruba-speaking Peoples of the Slave Coast, p. 300 (Tshiand Ewe-speaking peoples or 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).

2 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).

3 Falkner, Description of Patagonia, p. 123. Andersson, Lake Ngami, p. 231 (Damaras).

Fraser, Aborigines of New South Wales, p. 40 sq.

5 Bradbury, Travels in the Interior of America, p. 168.

6 Raffles, op. cit. ii. p. ccxxxvii. 7 Elphinstone, Kingdom of Caubul, ii. 105 sq.

to the relatives of the person murdered, who have power to dispose of him as they choose."1 A similar practice prevails among the Mishmis,2 Bataks, and Kamchadales. It was also recognised by early Slavonic,5 Teutonic, and English codes." 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.7

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. We can now see the reason for this apparent anomaly. J 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.

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,

1 Macdonald, in Jour. Anthr. Inst. xxii. 108.

2 Cooper, Mishmee Hills, p. 238.

3 von Brenner, op. cit. p. 212.

4 Georgi, Russia, iii. 137.

5 Maciejowski,

geschichte, ii. 127.

Slavische Rechts

6 Wilda, Strafrecht der Germanen, p. 167. Lex Salica, 68. Laws of Cnut, i. 53. Leges Henrici I. lxxi. 1.

Leges ville de Arkes ab abbate S. Bertini concessa, 28 (d'Achery, Spicilegium, iii. 608).

8 See infra, on Blood-revenge.

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.1

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.

2

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." The punishment of death was inflicted on the man who dressed himself like a woman, on the woman who dressed herself like a man,3 on tutors who did not give a good account of the estates of their pupils, on those who carried off, or changed, the boundaries placed in the fields by public authority; 5 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. Nor did the ancient Peruvian code economise human suffering by proportioning penalties to crimes; the punishment most commonly prescribed by it was death.? 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, and for privately casting copper coin; whilst for the commission of the most heinous crimes 1 Rée, Ursprung der moralischen Empfindungen, p. 45 sqq. Idem, Entstehung des Gewissens, p. 190 sqq.

9

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

3 Clavigero, History of Mexico, i. 358. 4 Ibid. i. 359.

5 Ibid. i. 355.

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

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

8 Wells Williams, Middle Kingdom, i. 512.

397.

Ta Tsing Leu Lee, sec. ccclix. p.

997

the penalty is "to be cut into ten thousand pieces," which appears to amount, at least, to a licence to the executioner to aggravate and prolong the sufferings of the criminal by any species of cruelty he may think proper to inflict.1 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." 2 According to the Mosaic law, death is inflicted for such offences as breach of the Lord's day,3 going to wizards,* eating the fat of a beast of sacrifice," eating blood, approaching unto a woman " as long as she is put apart for her uncleanness,' and various kinds of sexual offences. The Laws of Manu provide capital punishment for those who forge royal edicts and corrupt royal ministers; for those who break into a royal storehouse, an armoury, or a temple, and those who steal elephants, horses, or chariots; 10 for thieves who are taken with the stolen goods and the implements of burglary; 11 for cut-purses on the third conviction; 12 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.13

14

9

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. 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.15 Pocket-picking was punishable with death until the year 1808; 16 horse-stealing, cattle-stealing,

1 Ibid. sec. ccliv. p. 269 n. t

Reed, Japan, i. 323. Thunberg,

Travels, iv. 65.

3 Exodus, xxxi. 14.

4 Leviticus, xx. 6.

Ibid. vii. 25.

6 lbid. vii. 27.

7 Ibid. xviii. 19.

8 Ibid. xviii. 6 sqq.

Laws of Manu, ix. 232.

10 Ibid. ix. 280.

11 Ibid. ix. 270.

12 Ibid. ix. 277.

13 Ibid. viii. 371 sq.

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

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

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

1

sheep-stealing, stealing from a dwelling-house, and forgery, until 1832; letter-stealing and sacrilege, until 1835;2 rape, until 1841; robbery with violence, arson of dwelling-houses, and sodomy, until 1861. 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.5 Burning alive of female offenders still occurred in England at the end of the eighteenth century, being considered by the framers of the law as a commutation of the sentence of hanging required by decency.7 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. 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." 9 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.10 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.

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