CUSTOMS AND LAWS AS EXPRESSIONS OF MORAL IDEAS
Project Gutenberg EPUB3 edition
Westermarck, Edward
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.
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
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
Source notes
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.
115Leges villæ de Arkes ab abbate S. Bertini concessæ, 28 (d’Achery, Spicilegium, iii. 608).
116 See infra, on Blood-revenge.
117 Rée, Ursprung der moralischen Empfindungen, p. 45 sqq. Idem, Entstehung des Gewissens, p. 190 sqq.
118 Bancroft, Native Races of the Pacific States, ii. 454.
119 Clavigero, History of Mexico, i. 358.
120Ibid. i. 359.
121Ibid. 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.
125Ta Tsing Leu Lee, sec. ccclix. p. 397.
126Ibid. sec. ccliv. p. 269 n. †
127 Reed, Japan, i. 323. Thunberg, Travels, iv. 65.
128Exodus, xxxi. 14.
129Leviticus, xx. 6.
130Ibid. vii. 25.
131Ibid. vii. 27.
132Ibid. xviii. 19.
133Ibid. xviii. 6 sqq.
134Laws of Manu, ix. 232.
135Ibid. ix. 280.
136Ibid. ix. 270.