The origin and development of the moral ideas

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.

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

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.

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.