The origin and development of the moral ideas [1, 1971 ed.] 137592818X

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TRENT UNIVERSITY LIBRARY

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THE ORIGIN AND DEVELOPMENT OF THE MORAL IDEAS

THE ORIGIN AND

DEVELOPMENT OF

THE

MORAL IDEAS

BY

EDWARD WESTERMARCK

IN TWO VOLUMES VoL. I

BOOKS FOR LIBRARIES PRESS FREEPORT, NEW YORK

37/00 2 .

77 / 7

//

u,f

First Published 1906 Reprinted 1971

INTERNATIONAL STANDARD BOOK NUMBER:

0 8369 6706-2 -

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LIBRARY OF CONGRESS CATALOG CARD NUMBER:

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PRINTED IN THE UNITED STATES OF AMERICA BY NEW WORLD BOOK MANUFACTURING CO., INC. HALLANDALE, FLORIDA 33009

PREFACE The frequent references made in the present work, on

my own authority, to customs and ideas prevalent among the natives of Morocco, require a word of explanation. Seeing the close connection between moral opinions and magic and religious beliefs, I thought it might be useful for me to acquire first-hand knowledge of the folk-lore of some

non-European

people,

and for various reasons I

chose Morocco as my field of research.

During the four

years I spent there, largely among its country population, I have not only collected anthropological data, but tried to make myself familiar with the native way of thinking; and I venture to believe that this has helped me to under¬ stand various customs occurring at a stage of civilisation different

from

our

publish the detailed monograph on

own.

I

purpose

results of

before

long

to

my studies in a special

the popular religion and magics of

the

Moors. Forthese researches I have derived much material support from the University of Helsingfors.

I am also indebted

to the Russian Minister at Tangier, M. B. de Bacheracht, for his kindness in helping me on several occasions when I was dependent on the Sultan’s Government.

All the

time I have had the valuable assistance of my Moorish friend Shereef ‘Abd-es-Salam el-Bakkali, to whom credit

203399

PREFACE

VI

is due for the kind reception I invariably received from peasants and mountaineers, not generally noted for friend¬ liness towards Europeans. I beg to express my best thanks to Mr. Stephen Gwynn for revising the first thirteen chapters, and to Mr. H. C. Minchin for revising the remaining portion of the book. To their suggestions I am indebted for the improvement of

many phrases and expressions.

I

have likewise

to

thank my friend Mr. Alex. F. Shand for kindly reading the

proofs

of

the

earlier

chapters and giving me the

benefit of his opinion. Throughout the work the reader will easily find how much I owe to British science and thought—a debt which is greater than I can ever express. E. W. London,

January, 1906.

CONTENTS INTRODUCTORY The origin of the present investigation, p. I.—Its subject-matter, p. i sq.—Its practical usefulness, p. 2 sq.

CHAPTER I the emotional origin of moral judgments The moral concepts essentially generalisations of tendencies in certain phenomena to call forth moral emotions, pp. 4-6.—The assumed universality or “ob¬ jectivity ” of moral judgments, p. 6 sq.—'Theories according to which, the moral predicates derive all their import from reason, “ theoretical ” or “practical,” p. 7 sq.—Our tendency to objectivise moral judgments/no sufficient ground for referring them to the province of reason, p. 8 sq.—This tendency partly due to the comparatively uniform nature of the moral con¬ sciousness, p. 9.—Differences of moral estimates resulting from circumstances of a purely intellectual character, pp. 9-11.—Differences of an emotional origin, pp. 11 — 13.—Quantitative, as well as qualitative, differences, p. 13. The tendency to objectivise moral judgments partly due to the authority ascribed to moral rules, p. 14.—The origin and nature of this authority, pp. 14-17.—General moral truths non-existent, p. 17 sq. The object of scientific ethics not to fix rules for human conduct, but to study the moral consciousness as a fact, p. 18.—The supposed dangers of ethical subjectiv¬ ism, pp. 18-20.

CHAPTER

II

THE NATURE OF TIIE MORAL EMOTIONS The moral emotions of two kinds: disapproval, or-indignation, and approval, p_ 21T_The moral emotions retributive emotions, disapproval forming a sub¬ species of resentment, and approval a sub-species of retributive kindly emotion ibid.—Resentment an aggressive attitude of mind toward a cause of pain, p. 22 sq.—Dr. Steinmetz’s suggestion that revenge is essentially rooted in the feeling of power and superiority, and originally “ undirected, pp. 23—27.—The true import of the facts adduced as evidence for this hypothesis pp 27-30.—The collective responsibility usually involved in the institution of the blood-feud, pp. 30-32.—Explanation of it, pp. 32-35.—

CONTENTS

Vlll

The strong tendency to discrimination which characterises resentment not wholly lost even behind the veil of common responsibility, p. 35 sq.— Revenge among the lower animals, p. 37 sq.—Violation of the “ self¬ feeling ” a common incentive to resentment, p. 38 sq.—But the reaction of the wounded “self-feeling” not necessarily, in the first place, concerned with the infliction of pain, p. 39 sq.—Revenge only a link in a chain of emotional phenomena for which “non-moral resentment” may be used as a common name, p. 40.—The origin of these phenomena, pp. 40-42.—Moral indignation closely connected with anger, p. 42 sq.—Moral indignation, like non-moral resentment, a reactionary attitude of mind directed towards the cause of inflicted pain, though the reaction sometimes turns against innocent persons, pp. 43-48.—In their administration of justice gods still more indiscriminate than men, pp. 48-51.—Reasons for this, p. 51 sq.— Sin looked upon in the light of a contagious matter, charged with injurious energy, PP- 52~57-—The curse looked upon as a baneful substance injuring or destroying anybody to whom it cleaves, p. 57 sq.—The tendency of curses to spread, pp. 58-60, —Their tendency to contaminate those who derive their origin from the infected individual, p. 60 sq.—The vicarious suffering involved in sin-transference not to be confounded with vicarious expiatory sacrifice, p. 61.—Why scapegoats are sometimes killed, pp. 61-64.—Why sacrificial victims are sometimes used as scapegoats, p. 64 sq. —Vicarious expiatory sacrifices, pp. 65-67.—The victim accepted as a substitute on the principle of social solidarity, p. 67 sq.—Expiatory sacrifices offered as ransoms, p. 68 sq.—Protests of the moral consciousness against the infliction of penal suffering upon the guiltless, pp. 70-72.

CHAPTER III THE NATURE OF THE MORAL EMOTIONS (continued)

Whilst, in the course of mental evolution, the true direction of the hostile reaction involved in moral disapproval has become more apparent, its aggressive character has become more disguised, p. 73.—Kindness to enemies riot a rule in early ethics, p. 73 sq.— At the higher stages of moral development retaliation condemned and forgiveness of enemies laid down as a duty, PP- 74-77-—The rule of retaliation and the rule of forgiveness not radically opposed to each other, p. 77 sq.—Why enlightened and sympathetic minds disapprove of resentment and retaliation springing from personal motives, p. 78 sq.—The aggressive character of moral disapproval has also become more disguised by the different way in which the aggressiveness displays itself, p. 79.—Retributive punishment condemned, and the end ofpunishment considered to be either to deter from crime, or to reform the criminal or to repress crime by eliminating or secluding him, pp. 79-81.— Objections to these theories, p. 82 sq.—Facts which, to some extent, fill up the gap between the theory of retribution and the utilitarian theories of punishment, pp. 84-01.— The aggressive element in moral disapproval has undergone a change which tends to conceal its true nature by narrowing the channel in which it discharges itself, deliberate and discriminating resentment being apt to turn against the will rather than against the wilier, n. or & 626 ^--Explanation of the extraordinary development of the paternal authority in the archaic State, p. 627 *7.-Causes of the downfall of the paternal power, p. 628. V 1 es 01 ttle

CHAPTER XXVI THE SUBJECTION OF WIVES

Amt?j1l!°Wer/aCeS the,wife frequcntly said to be the property or fd’ Pr 62? s9-~Jet even m such cases custom has not left destitute of ngnts, p. 630 sq.~The so-called absolute authority over their wives not to be taken too literally e T,%

slave of her her entirely of husbands 0■ husbands

The Ta0 Ta °n lre hU$band absolute’ rights over’ hT£p632?/The hardest drudgeries of life often said to be imposed on the wom^n P- b3o In early society each sex has its own pursuits n 6ia 1 ’

according to which the various occupationsTlK sexes aie on the whole ,n conformity with the indications given by nature " 636 % -Rhis adprtTmisleadbf°hUriemPnaSISed by CUSt0m and superstition,’ rtf' •/ l??1 m . ead the travelling stranger, p. 637 — It uives the wife authonty within the circle which is exclusively her own ibid.-Reject on of the broad statement that the lower races in general hnlr? state of almost complete subjection pp J 6afi • ?0me{? m a peoples civilisation may be measured bytfie position held^vX^o ^ &

to their husbands in ^•~WlTS’ subjection power, and to the natural suTSuiesTbod ,“3 mind as are essential for personal independence, p. 657 -Sernems In ^he sexual impulse which lead to domination on? the part of iP m and to submission on the part of the .woman, p. 60 x*-Bu^ if ^he man s domination is carried beyond the limits of female7 love 7h f h feels it as a burden, p. 658 x/-In extreme cases n ’ •:he WOman rate, the community at large would sympathise with her^nd ^h’ ^ nr7 ,eS th« 3 Keating-; Expedition to the Source of St. Peter's River, 1. 123 (Potawatomis). Richardson, Arctic Searching Expedition, ii. 27 (Chippewyans), Carver, Travels, p. 259 (Naudov, essies). Dobrizhoffer, Accoutit of the Abipones. ii. 103 ; &c.

184

CUSTOMS AND LAWS AS

CHAT.

others he acts merely as an adviser, or is appealed to as an arbiter or the injured party may choose between avenging himself and appealing to the chief for redress;2 or the judicial power with which the chief is invested is stated to be more nominal than real.3 It is also interesting to note that in several cases the injured party or the accuser acts as executioner, but not as judge. 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 aimed. They throw at him a shower of spears and ‘bumarangs,’ from which he protects himself with a light shield.” 4 Among the Aricara Indians of the Missouri, who, for the most part, punish murder with death, the nearest relative of the mur¬ dered man was deputed by the council to act the part ot executioner.5 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.”6 In some parts of Af¬ ghanistan, “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.” 7 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 1 Lewis and Clarke, Travels to the Source of the Missouri River, p. 306 sq. (Shoshones). Powers, Tribes of Cali¬ fornia, 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 (Tshiand Ewe-speaking peoples of the African West Coast). Burckhardt, Bedouins and Wahdbys, pp. 68, 70. Blunt, op. cit. ii. 232 sq. (Bedouins of the Euphrates). von Ilaxthausen, Transcaucasia, p. 415 (Ossetes).

2 Ellis, Tour through Hawaii, p. 429. Williams and Calvert,'Fiji and the Fijians, p. 23. Eorbes, A Natur¬ alist's Wanderings in the Eastern Archipelago, p. 473 (Timorese). 3 Falkner, Description of Patagonia, p. 123. Anderson, Lake Ngami, p. 231 (Damaras). 4 Fraser, Aborigines of New South Wales, p. 40 sq. 6 Bradbury, Travels in the Interim of America, p. 168. ’’ baffles, op. cit. ii. p. ccxxxvii. Elphinstone, Kingdom of Caubttl, 11. 105 sq.

VII

EXPRESSIONS OF MORAL IDEAS

185

to the relatives of the person murdered, who have power to dispose of him as they choose.”1 A similar practice prevails among the Mishmis,2 Bataks,3 and Kamchadales.4 It was also recognised by early Slavonic,5 Teutonic, and English codes.6 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.7

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 autho¬ rities. 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 cul¬ ture.8 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 communica¬ tion 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 punish¬ ment, not only ought to be, but actually is, or has been, 1 Macdonald, in Jour. Anthr. hist. xxii. 108. 2 Cooper, Mishmee Hills, p. 238. 3 von Brenner, op. cit. p. 212. 4 Georgi, Russia, iii. 137. 5 Macieiowski, Slavische Rechtsgeschichte, ii. 127.

6 Wilda, Strafrecht der Germanen, p. 167. Lex Salica, 68. Laws of Cunt, i. 53. Leges Henrici /. lxxi. 1. 7 Leges villa de Arkes ab abbate S. Bertini concessa, 28 (d’Achery, Spicilegitim, iii. 608). 8 See infra, on Blood-revenge.

186

CUSTOMS AND LAWS AS

CHAP.

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 conscious¬ ness; that punishment is not the result of a sense of justice, but that the sense of justice is a result of punish¬ ment; that, by being punished by the State, certain acts gradually came to be regarded as worthy of punishment, in other words, as morally wrong.1 There are certain facts which seem to support the sup¬ position that punishment has, to a large extent, been in¬ tended 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.”2 The punishment of death was inflicted on the man who dressed him¬ self like a woman, on the woman who dressed herself like a man,3 on tutors who did not give a good account of the estates of their pupils,4 on those who carried off, or changed, the boundaries placed in the fields by public authority;5 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.6 Nor did the ancient Peruvian code economise human suffering by proportioning penalties to crimes; the punishment most commonly prescribed by it was death.7 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,8 and for privately casting copper coin;9 whilst for the commission of the most heinous crimes 1 Ree, Ursprung der moralischen Entpfindungen, p. 45 sqq. Idem, Entstehung des Gewissens, p. 190 sqq. 2 Bancroft, Native Races of the Pacific States, ii. 454. 3 Clavigero, History of Mexico, i. 358. 4 Ibid. i. 359.

6 Bancroft, op. cit. ii. 465 sq. 7 Garcilasso de la Vega, First Part of the Royal Commentaries of the Yncas, i. 145. C1 sq. 8 Wells Williams, Middle Kingdom, i. 312. ■

Ta Tsing Leu Lee, sec

ccclix. p.

VII

EXPRESSIONS OF MORAL IDEAS

187

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.1 2 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 aggra¬ vated crimes. - According to the Mosaic law, death is inflicted for such offences as breach of the Lord’s day,3 4 going to wizards,1 eating the fat of a beast of sacrifice,5 eating blood,6 7 approaching unto a woman “ as long as she is put apart for her uncleanness, and various kinds of sexual offences.8 The laws of Manu pro¬ vide capital punishment for those who forge royal edicts and corrupt royal ministers ;9 for those who break into a royal store¬ house, an armoury, or a temple, and those who steal elephants, horses, or chariots ; 10 for thieves who are taken with the stolen goods and the implements of burglary ; 11 for cut-purses on the third conviction ;12 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.13 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.14 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.15 Pocket-picking was punishable with death until the year 1808;16 horse-stealing, cattle-stealing, 1 Ibid. sec. ccliv. p. 269 n. f 2 Reed, Japan, i. 323. Thunberg, Travels, iv. 65. 3 Exodus, xxxi. 14. 4 Leviticus, xx. 6. 5 Ibid. vii. 25. 6 Ibid. vii. 27. 7 Ibid, xviii. 19. 8 Ibid, xviii. 6 sqq. 8 Laws of Manu, ix. 232. 13 Ibid. ix. 280.

11 12 18 14

Ibid. ix. 270. Ibid. ix. 277. Ibid. viii. 371 sq. Pollock and Maitland, op. cit. ii.

Sir10 May, Constitutional History of England, ii. 595. Mackenzie, Studies in Roman Law, p. 424 sq. 16 Pike, History of Crime in England, ii. 450.

188

CUSTOMS AND LAWS AS

CHAP.

sheep-stealing, stealing from a dwelling-house, and forgery, until 1832 i1 letter-stealing and sacrilege, until 1835;2 rape, until 1841;3 robbery with violence, arson of dwelling-houses, and sodomy, until i86i.4 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 tor¬ ture, was adopted as a manner of punishment suitable to cases where the accused refused to plead.5 Burning alive of female offenders still occurred in England at the end of the eighteenth century,6 being considered by the framers of the law as a com¬ mutation of the sentence of hanging required by decency.7 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.8 This punishment con¬ tinued 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.”9 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.10 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. 1 I bid. ii. 451. Stephen, History oj the Criminal Law of England, i. 474. 2 Pike, op. cit. ii. 451. Stephen, op. it. i. 474. 3 Stephen, op. cit. i. 475. 4 Ibid. i. 475. 6 For the manner in which this tor¬ ture was inflicted, see Andrews, OldTime Punishments, p. 203 sq. T 4 Ibid. p. 198. Stephen, op. cit. i.

4777 Andrews, op. cit. p. 192.

8 Holinshed, Chronicles of England, &*c. i. 310. Thomas Smith, Common¬ wealth of England, p. 198. 9 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). 10'Stephen, op. cit. i. 478. Cf. Thomas Smith, op. cit. p. 193 sq.

VII

EXPRESSIONS OF MORAE IDEAS

189

Among several uncivilised peoples capital punishment is said to be unknown or almost so.1 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.”2 The Aleuts punished with death murderers and betrayers of community secrets.3 In Samoa and New Guinea murder and adultery are punished capitally ; 4 among the Bataks, open robbery and murder, provided that the offender is unable to redeem his life by a sum of money ;5 among the Kukis, only treason or an attempt at violence on the person of the King.6 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.7 In Kar Nicobar the only cause for a “death penalty” that Mr. Distant could discover was madness.3 Among the Soolimas “ murder is the only crime punishable with death.” 9 Among the Congo natives “ the only capital crimes are stated to be those of poisoning and adultery.”10 Of the kingdom of P'ida 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.” 11 Among the Wanika two crimes are visited with capital punishment—murder and an improper use of sorcery ;12 among the Wagogo13 and Washambala,14 witch¬ craft 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.15 Among the Kafirs, cases of assault on the persons of wives of the chiefs, 1 von Siebold, Ethnol. Studien iiber 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 PalauInseln,’ in Journal des Museum Godeffroy, iv. 42 (Pelew Islanders). de Abreu, op.cit. p. 152 (Canary Islanders). Fritsch, Z)/V Eingeborenen Siid- Afrika's, p. 322 (Hottentots). 2 Cranz, op. cit. i. 177. s Petroff, loc. cit. p. 152

4 Turner, Samoa, p. 17S. Chalmers, Pioneering in New Guinea, p. 179. 5 Marsden, op. cit. p. 389. 6 Dalton, op. cit. p. 45. Stewart, in Jour. As. Soc. Bengal, xxiv. p. 627. 7 Griffith, ibid. vi. 332. 8 Distant, inJour. Antkr. Inst. iii. 6. 9 Laing, Travels, p. 365. 10 Tucker, Expedition to Explore the River Zaire, p. 383. 11 Bosman, op. cit. p. 331. 12 New, op. cit. p. in. 12 Beverley, in Steinmetz, Rechtsverhiiltnisse, p. 215. 14 Lang, ibid. p. 259. 16 Casalis, op. cit. p. 228.

190

CUSTOMS AND LAWS AS

CHAP.

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.1 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.”2 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 wicked¬ ness. 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.”3 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 legis¬ lators themselves often refer to the deterrent effects of punishment. The Peruvian Incas considered that light punishments aave 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 com¬ mitted in every commonwealth where no diligence is observed 1 Maclean, Compendium of Kafir Laws and Customs, p. 35 sq.

2 Yate, Account of New Zealand, n 105. 1 3 Codrington, op. cit. p. 347.

VII

EXPRESSIONS OF MORAL IDEAS

191

to root up the evil plant at the commencement.”1 According to the Prefatory Edict of the Emperor Kaung-hee, published in 1679, the chief ends proposed by the institution of punish¬ ments 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 com¬ munity.”2 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 sacrifi¬ cial 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.”3 Even the gods, the Danavas, the Gandharvas, the Rakshasas, the bird and snake deities, give the enjoyments due from them only if they are tormented by the fear of punishment.4 In mediatval law-books determent is frequently referred to as an object of punishment.5 And in more modern times, till the end of the eighteenth cen¬ tury at least, the idea that punishment should inspire fear was ever present to the minds of legislators.

The same idea is also conspicuous in the practice of punishing criminals in public.0 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 1 Garcilasso de la Vega, op. cit. i. 151 sq. 'l Ta Tsing Leu Lee, p. Ixvn. 3 Laws of Manu, vii. 14, 15, 20-22, 24 sq. 4 Ibid. vii. 23. 5 lieges Burgundionum, Leges Gundebati, 52 : “ Rectius enim paucorum condempnatione multitudo corregitur, quam sub specie incongruae civilitatis intromiltatur occasio, quae licentiam tribuatdelinquendi.” CapitularcAquis-

granense An. 802, 33 : “ Sed taliter hoc corripiantur, ut caeteri metum habeant talia perpetrandi” (Migne, Patrologice cursus, xcvii. 230). Chlotar II. Edictum de Synodo Parisiemi, 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. 6 Gunther, Die Idee der IViedervergeltnng, i. 211 sq, n. 31.

192

CUSTOMS AND LAWS AS

CHAP.

means uncommonly in mediaeval manuscripts.”1 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.2 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.”3 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 in¬ terpretation.4 “ 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.’ ” 5 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 Wright, History of Domestic A/anners and Sentiments in England during

o 'Vr/f’

P- 346; Holinshcd, op. cit. i. 3x1. Blackstone, Commentaries on the Laws of England, iv. 201. Cox, ‘ Hanging in

Chains,’ in The Antiquary, xxii. 21 "5 so. 3 Strutt, View gj fhe Matmer ^ of the Inhabitants of England, ii. 8. 4 Staunton, in his Preface to Ta Tsing Leu Lee, p. xxvii sq 5 Wells Williams, op. cit. i. 392 sq.

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193

which sentence was passed; indeed, “not one in twenty of the sentences was carried into execution.”1 This dis¬ crepancy 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 ob¬ served 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.” 2 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.”3 Another circumstance worth mentioning is, that in earlier times the detection of criminals was much rarer and more uncertain than it is now.4 It has been argued on utilitarian grounds that, “ to enable the value of the punish¬ ment 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.”5 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 indigna¬ tion of the public turns against him, and he becomes a scapegoat for all the rest. However, the chief explanation of the great severity of certain criminal codes lies in their connection with despotism or religion or both.0 An act which is pro1 Stephen, op. cit. i. 471. May, op. cit. ii. 597. 2 May, op. cit. ii. 597. 3 Andrews, op. cit. p. 218. Cf. Olivecrona, Om dodsslraffct, p. x. 4 Cf. Morrison, Crime audits Causes,

p. 173. VOL.

I

5 Bentham, Principles of Morals and Legislation, p. 184. Cf. I'aley, Moral and Political Philosophy, vi. 9 (Complete Works, ii. 371). 6 This has been previously pointed out by Prof. Durkheim, in his interest ing essay, ‘Deux lois de revolution

O

194

CUSTOMS AND LAWS AS

CHAP.

hibited 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. penale’ (IJannie sociologique, iv. [18991900], p. 64 sqt].), with which I became acquainted only when the present chap¬ ter was already in type. Montesquieu observes [De P esprit cles lois, vi. 9 [(Eta-res, p. 731]), “ II serait aise c(e

prouver que, dans tous ou presque tous les Etats d’Europe, les peines ont dimi'11^ ou augmente a mesure qu’on s’est plus approche ou plus eloigne de la liberte.”

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EXPRESSIONS OF MORAL IDEAS

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\ arious 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.1 In Madagascar, aiso, “death was formerly inflicted for almost every offence.”2 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 slove 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.”3 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.4 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.”5

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 tfieir 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.0 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.' According 1 Ellis, Tshi-speaking Peoples of the Gold Coast, p. 166. 2 Ellis, History of Madagascar, i.

4 Kollnmnn, Victoria Nyanza, 170 st/. 5 Ellis, Tour through Hawaii,

3743 Ashe, Two Kings of Uganda, p. 293. Cf. Wilson and Felkin, Uganda and the Egyptian Soudan, i. 201.

43b 6 Garcilasso de la Vega, op. cit. i. J4S7 Wells Williams, op. cit. i. 393.

O 2

p. p.

196

CUSTOMS AND LAWS AS

CHAP.

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.”1 In Rome the criminal law, which for a long time was characterised by great modera¬ tion,2 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 aquce 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.3 In mediaeval 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 preroga¬ tive 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.4 And the King was not only regarded as the fountain of social justice, but as the earthly representative of the heavenly lawgiver and judge,5 Of the connection between punishment and the belief in supernatural agencies many instances are found already in the savage world.5 The great severity with which cer1 Griffis, Religions of Japan, p. 92. Cf. Idem, Mikado's Empire, p. 100. 2 Cf Livy, x. 9; Polybius, vi. 14; Gibbon, History of the Decline and Fall of the Roman Empire, v. 318, 326. 3 Mackenzie, Studies in Roman Law, pp. 408, 409, 414. Gibbon, op. cit. v. 320. Cf Mommsen, Romisches Strafrecht, p. 943. 4 Cherry, Growth of Criminal Law in Ancient Communities, pp. 68, 105. 8 Henke, Grundriss einer Geschichte

des deutschen peinlichen Rechts, ii. 310. Abegg, Die versehiedenen Strafrecktstheorieen, p. 117. Du Boys, Histoire du droit criminel de l’Espagne, p. 323. 6 Steinmetz, Ethnol. Sludien zur ersten Entwicklung der Strafe, ii. 340 sq. The connection between punishnient 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 penal,’ in Revue de l'histoire des religions, vols. xxxiv. and xxxv.). But Prof. Durkheim

VII

EXPRESSIONS OF MORAL IDEAS

197

tain 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.” 1 Among the western tribes of Torres Straits, “death was the penalty for infringing the rules connected with the initiation period /.