Читать книгу The Origin and Development of the Moral Ideas - Edward Westermarck - Страница 79

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).

153 Cranz, op. cit. i. 177.

154 Petroff, loc. cit. p. 152.

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

156 Marsden, op. cit. p. 389.

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

158 Griffith, ibid. vi. 332.

159 Distant, in Jour. Anthr. Inst. iii. 6.

160 Laing, Travels, p. 365.

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

162 Bosman, op. cit. p. 331.

163 New, op. cit. p. 111.

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

165 Lang, ibid. p. 259.

166 Casalis, op. cit. p. 228.

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.

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

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 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.

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

171 Ta Tsing Leu Lee, p. lxvii.

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

173 Ibid. vii. 23.

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 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

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

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

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.

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 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

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

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

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

182 May, op. cit. ii. 597.

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.

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

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 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.

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 [Œuvres, p. 231]), “Il serait aisé de prouver que, dans tous ou presque tous les États d’Europe, les peines ont diminué ou augmenté à mesure qu’on s’est plus approché ou plus éloigné de la liberté.”

Various facts might be quoted in support of this explanation. Whilst the punishments practised among the lower races generally, are not conspicuous for their severity, there are exceptions to this rule among peoples who are governed by despotic rulers.

Under the Ashanti code, even the most trivial offences are punishable with death.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

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

188 Ellis, History of Madagascar, i. 374.

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

190 Kollmann, Victoria Nyanza, p. 431.

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 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

192 Garcilasso de la Vega, op. cit. i. 145.

193 Wells Williams, op. cit. i. 393.

194 Griffis, Religions of Japan, p. 92. Cf. Idem, Mikado’s Empire, p. 100.

195 Cf. Livy, x. 9; Polybius, vi. 14; Gibbon, History of the Decline and Fall of the Roman Empire, v. 318, 326.

196 Mackenzie, Studies in Roman Law, pp. 408, 409, 414. Gibbon, op. cit. v. 320. Cf. Mommsen, Römisches Strafrecht, p. 943.

197 Cherry, Growth of Criminal Law in Ancient Communities, pp. 68, 105.

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 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

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.”

200 Ellis, Tour through Hawaii, p. 394. Cf. Olmsted, Incidents of a Whaling Voyage, p. 248 sq.; Mauss, in op. cit. xxxv. 55.

201 Haddon, ‘Ethnography of the Western Tribes of Torres Straits,’ in Jour. Anthr. Inst. xix. 335.

202 Schürmann, ‘Aboriginal Tribes of Port Lincoln,’ in Woods, Native Tribes of South Australia, p. 234.

203 Johnston, Kilima-njaro Expedition, p. 425.

204 See infra, on Sexual Morality.

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 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

206 Cf. Robertson Smith, Religion of the Semites, p. 162 sq.

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.

208 Laws of Cnut, ii. 40.

209 Montesquieu, De l’esprit des lois, xii. 4 (Œuvres, 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 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.”