2 1 the chief, inducing the avenger to lay down his weapon and to accept money for blood. I do not say that the practice of compensation has originated in such an intervention; we meet it among peoples who know nothing of courts, judges, or regular arbitrators. But when we hear of chiefs making efforts to check the blood-feud by persuading the injured party to accept remuneration in money or property, it is impossible to doubt that some connection exists between the system of compensation and the judicial power of the chief. Among the Indians of Brazil, when blood is shed, either designedly or accidentally, by one of the same tribe, the chief not seldom insists upon the acceptance of compensation by the family of the deceased. Of the people of Nias, amongst whom the offender may suffer death at the hands of the avenger, we read that even grave cases, when brought before the chief, are often punished by fines only. Among the Dooraunees, in Western 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." The Teutonic nations, as Kemble observes, in the course of time made the State the arbitrator between the parties by establishing a tariff at which injuries should be rated, and committing to the State the duty of compelling the injured person to receive, and the wrong-doer to pay, the settled amount. It thus engaged to act as a mediator between the conflicting interests, with a view to the maintenance of the general peace." 3 4 We have previously discussed the important measure of substituting punishment for revenge by transferring the judicial and executive power of the avenger to a special authority within the body politic, commissioned with 1 E.g., the Fuegians (Bridges, in South American Missionary Magazine, xiii. 152. Idem, in A Voice for South America, xiii. 207). 2 von Martius, Beiträge zur Ethnographie Amerika's, i. 130. Idem, in Jour. Roy. Geographical Soc. ii. 199. 4 270. Kemble, Saxons in England, i. 2 1 the administration of justice. The system of compensation was only one of the methods adopted by such an authority for the settling of disputes; and, on the whole, it was a sign of weakness. Speaking of the Rejangs of Sumatra, Marsden observes that the practice of expiating murder by the payment of a certain sum of money "had doubtless its source in the imbecility of government, which being unable to enforce the law of retaliation, the most obvious rule of punishment, had recourse to a milder scheme of retribution, as being preferable to absolute indemnity." When the central power of jurisdiction is firmly established, the rule of life for life regains its sway." Thus, in the mature legislation of semi-civilised and civilised peoples, up to quite recent times, murder has almost invariably been treated as a capital offence-—unless, indeed, committed by some person belonging to a specially privileged class, such as the Peruvian Incas, the Brâhmanas of India, or, in England, all who had the Benefit of Clergy, that is, every man who knew how to read, with the exception of those who were married to widows.5 But among many of the lower races, also, manslayers are subject to capital punishment, in the proper sense of the term-to death inflicted, not by an individual avenger, but by the community at large or by some special authority." 4 3 It is not only by the slaying of a fellow-creature that a person may forfeit his right to live. Among various peoples custom allows, or sometimes even compels, the offended party to kill the offender in cases which involve 1 Marsden, History of Sumatra, p. 246. 2 Cf. Brunner, Deutsche Rechtsgeschichte, ii. 599 sq. (Teutonic peoples). 3 Réville, Hibbert Lectures on the Native Religions of Mexico and Peru, p. 151. + Laws of Manu, viii. 380 sq. 5 Stephen, History of the Criminal Law of England, i. 458 sqq. According to the Cornelian law, a free Roman citizen could not be punished capitally for the commission of murder, but was 6 simply exiled from Italy, whereas a slave was executed for a similar crime (Mommsen, Römisches Strafrecht, p. 631 sq.). Supra, pp. 171, 172, 189. Veniaminof, quoted by Petroff, loc. cit. p. 152 (Aleuts). Adair, History of the American Indians, p. 150. Morgan, League of the Iroquois, p. 331. Harmon, Journals of Voyages and Travels, p. 348 (Indians on the east side of the Rocky Mountains). Turner, Samoa, pp. 178, 295, 334 (Samoans, natives of Arorae, Efatese). Thomson, in Jour. 2 3 8 4 6 no blood-guiltiness, especially adultery;1 and we hear of capital punishment being inflicted not only for homicide, but for treason, incest, adultery, witchcraft, sacrilege, theft, and other offences. We have seen that among semi-civilised and civilised nations, particularly, the punishment of death has been applied to a great variety of offences, many of which appear to us almost venial.o And we have discussed both the origin of the idea that justice requires life for life, and the circumstances that have led to the infliction of punishments the severity of which, apparently at least, bears no proportion to the magnitude of the crime.10 But whilst, among peoples of culture, capital punishment has been inflicted far beyond the limits of the lex talionis, we meet, on the other hand, among such peoples with opinions to the effect that it should not be applied even in the most atrocious cases. The old philosopher Lao-tsze, the founder of Taouism, condemned it both as useless and as irreverent. The people, he argued, do not fear death; to what purpose, then, is it to try to frighten them with death? There is only one who presides over the infliction of it. "He who would inflict death in the room of him who presides over it may be described as hewing wood instead of a great carpenter. Seldom is it that he who undertakes the hewing, instead of the great carpenter, does not cut his own hands." 11 Nor does Confucius seem to have been in favour of capital punishment. When Chî Anthr. Inst. xxxi. 143 (Savage Islanders). Hickson, A Naturalist in North Celebes, p. 198 (Sangirese, in former days). Abreu de Galindo, History of the Discovery and Conquest of the Canary Islands, p. 27 (aborigines of Ferro). Johnston, Uganda Protectorate), ii. 882 (Mutei). Beltrame, Il Fiume Bianco e i Dénka, p. 77. In all these cases homicide or murder is said to be punished with death; but it may be that, in some of them, our authorities have not sufficiently distinguished between punishment and blood-revenge. 1 Supra, p. 290 sqq. Infra, on Sexual 2 1 K'ang asked his opinion as to the killing of "the unprincipled for the good of the principled," Confucius replied:"Sir, in carrying on your government, why should you use killing at all? Let your evinced desires be for what is good, and the people will be good." The early Christians generally condemned the punishment of death, as well as all other forms of shedding human blood; but when the Church obtained an ascendency, the condemnation of it was modified into the doctrine that no priest or bishop must take any part in a capital charge.3 Later on, from the twelfth century at least, the priest might assist at judicial proceedings resulting in a sentence of death, if only he withdrew for the moment, when the sentence was passed. And whilst ostentatiously sticking to the principle, "Ecclesia non sitit sanguinem," the Church had frequent recourse to the convenient method of punishing heretics by relegating the execution of the sentence to the civil power, with a prayer that the culprit should be punished "as mildly as possible and without the effusion of blood," that is, by the death of fire. modern times the views of the early Christians regarding capital punishment have been revived by the Quakers; but the powerful movement in favour of its abolition chiefly derives its origin from the writings of Beccaria and the French Encyclopedists. 4 "5 In 7 The great motive force of this movement has been sympathy with human suffering and horror of the destruction of human life-feelings which have been able to operate the more freely, the less they have been checked either by the belief in the social expediency of capital punishment, or by the notion of a vindictive god who can be conciliated only by the death of the offender. It has been argued that the punishment of death is no more effective as a deterrent from crime than are certain other punishments. According to Beccaria, it is not the intensity of a pain which produces the greatest effect on the mind of man, but its continuance; hence the execution of a culprit, occupying a short time only, must be a less deterring example than perpetual slavery, which ought to be the penalty for the greatest crimes.1 Moreover, the circumstances which unavoidably attend the practical application of the punishment of death are such as excite the sympathy of the public in favour of the perpetrator of the crime, and thereby seriously impair the efficacy of the punishment as an example.2 An execution is regarded as less degrading than many other forms of punishment; when a man dies on the scaffold there is a counterpoise to the disgrace in the admiration excited by his firmness, whereas there is no such counterpoise when a man goes off in the prison van to be immured in a cell. Statistical data prove, it is said, that, where capital punishment has been abolished either for certain crimes or generally, crime has not become more frequent after the abolition, whilst the re-enactment of capital punishment, or greater strictness in its execution, has nowhere diminished the number of offences punishable with death.1 And the punishment of death is no more required by the dictates of abstract justice than it is requisite for the safety of the community. It is quite an arbitrary assumption, based on the rude theory of talion, that death must be inflicted on him who has caused death; such an assumption can be refuted simply by showing that there are many degrees of homicide. Nay, far from being postulates of the highest justice, laws which 3 5 4 Mittermaier, Die Todesstrafe, p. 150 sqq. Olivecrona, Om dödsstraffet, p. 130 sqq. 5 Mittermaier, op. cit. pp. 62, 133. von Mehring, Frage von der Todesstrafe, p. 19 sqq. |