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93 Mason, in Jour. Asiatic Soc. Bengal, xxxvii. pt. li. 145. Cf. MacMahon, Far Cathay and Farther India, p. 188.

94 Casalis, op. cit. p. 226.

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 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

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.

97 von Haxthausen, Transcaucasia, p. 411.

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.

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.

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 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.

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.

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 Ew̔e-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).

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).

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 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

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

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

107 Raffles, op. cit. ii. p. ccxxxvii.

108 Elphinstone, Kingdom of Caubul, ii. 105 sq.

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

110 Cooper, Mishmee Hills, p. 238.

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

112 Georgi, Russia, iii. 137.

113 Macieiowski, Slavische Rechtsgeschichte, ii. 127.

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

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.

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, 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

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 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

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

119 Clavigero, History of Mexico, i. 358.

120 Ibid. i. 359.

121 Ibid. i. 355.

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

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

124 Wells Williams, Middle Kingdom, i. 512.

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

126 Ibid. sec. ccliv. p. 269 n. †

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

128 Exodus, xxxi. 14.

129 Leviticus, xx. 6.

130 Ibid. vii. 25.

131 Ibid. vii. 27.

132 Ibid. xviii. 19.

133 Ibid. xviii. 6 sqq.

134 Laws of Manu, ix. 232.

135 Ibid. ix. 280.

136 Ibid. ix. 270.

137 Ibid. ix. 277.

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, 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.

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

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

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

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

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

144 Stephen, op. cit. i. 475.

145 Ibid. i. 475.

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

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

148 Andrews, op. cit. p. 192.

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

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).

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.

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 Wagogo164 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, 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