On the other hand, it is expressly declared in the Avesta that a mad dog shall not be permitted to plead insanity in exculpation of itself, but shall be “punished with the punishment of a conscious and premeditated offence” (baodho-varsta), i.e. by progressive mutilation, corresponding to the number of persons or beasts it has bitten, beginning with the loss of its ears, extending to the crippling of its feet and ending with the amputation of its tail. This cruel and absurd enactment is wholly inconsistent with the kindly spirit shown in the Avesta towards all animals recognized as the creatures of Ahuramazda, and especially with the many measures taken by the Indo-Aryans as a pastoral people for the protection of the dog. Indeed, a paragraph immediately following in the same chapter commands the Mazdayasnians to treat such a rabid dog humanely, and to “wait upon him with medicaments and to try to heal him, just as they would care for a righteous man.” On this important point Avestan legislation is so inconsistent and self-contradictory that one may justly suspect the harsh enactments to be later interpolations.
A curious example of imputed crime and its penal consequences is seen in the Roman custom of celebrating the anniversary of the preservation of the Capitol from the night-attack of the Gauls, not only by paying honour to the descendants of the sacred geese, whose cries gave warning of the enemy’s approach, adorning them with jewels and carrying them about in litters, but also by crucifying a dog, as a punishment for the want of vigilance shown by its progenitors on that occasion. This imputation of merit and demerit was really no more absurd than to visit the sins of the fathers on the children, as prescribed by Jewish and other ancient lawgivers, or to decree corruption of blood in persons attainted of treason, as is still the practice of modern states, or any other theory of inherited guilt or scheme of vicarious atonement, that sets the sin of the federal head of the race to the account of his remotest posterity and relieves them from its penalties only through the suffering and death of a wholly innocent person. They are all applications of the barbarous principle, which, in primitive society, with its gross conceptions of justice, made the entire tribe responsible for the conduct of each of its members. The vendetta, which continues to be the unwritten but inviolable code of many semi-civilized communities, is based upon the same conception of consanguineous solidarity for the perpetration and avenging of crime.
According to an old Anglo-Saxon law, abolished by King Canute, in case stolen property was found in the house of a thief, his wife and family, even to the infant in the cradle, though it had never taken food (peâh hit nafre metes ne âbîte), were punished as partakers of his guilt. The Schwabenspiegel, the oldest digest of South German law, treated as accessaries all the domestic animals found in a house, in which a crime of violence had been committed, and punished them with death. [“Man soll allez daz tötden daz in den huze ist gevonden: leuten und vie, ros und rinder, hunde und katzen, ganzen und hundre.” § 290.]
Cicero approved of such penalties for political crimes as “severe but wise enactments, since the father is thereby bound to the interests of the state by the strongest of ties, namely, love for his children.” Roman law under the empire punished treason with death and then added: “As to the sons of traitors, they ought to suffer the same penalty as their parents, since it is highly probable that they will sometime be guilty of the same crime themselves; nevertheless, as a special act of clemency, we grant them their lives, but, at the same time, declare them to be incapable of inheriting anything from father or mother or of receiving any gift or bequest in consequence of any devise or testament of kinsmen or friends. Branded with hereditary infamy and excluded from all hope of honour or of property, may they suffer the torture of disgrace and poverty until they shall look upon life as a curse and long for death as a kind release.” This atrocious edict of the emperors Arcadius and Honorius has its counterpart in the still more radical code of Pachacutez, the Justinian of the ancient Peruvians, which punished adultery with the wife of an Inca by putting to death not only the adulteress and her seducer, but also the children, slaves and kindred of the culprits, as well as all the inhabitants of the city in which the crime was committed, while the city itself was to be razed and the site covered with stones.
The principle enunciated by Cicero has also been accepted by modern legislators as applicable to high treason. Thus, when Tschech, the burgomaster of Storkow, attempted to take the life of Frederic William of Prussia, July 26, 1844, he was tried and executed Dec. 14 of the same year. On the day after his execution his only daughter, Elizabeth, was arrested, and to her inquiry by what right she had been deprived of her freedom, the authorities replied that, “according to Prussian law the children of a person convicted of high treason and all the members of his family, especially if they seemed to be dangerous and to share the opinions of their father, can be imprisoned for life or banished from the country.” The young lady was then exiled to Westphalia, and there placed in the custody of an extremely austere parson, until she finally escaped to France, and afterwards to Switzerland, where she spent the rest of her days.
When the prefects Tatian and Proculus fell into disgrace, Lycia, their native land, was deprived of the autonomy it had hitherto enjoyed as a Roman province, and its inhabitants were disfranchised and declared incapable of holding any office under the empire. So, too, when Joshua discovered some of the spoils of Jericho hidden in the tent of Achan, not only the thief himself, but also “his sons, and his daughters, and his oxen, and his asses, and his sheep, and his tent, and all that he had,” were brought into the valley of Achor, and there stoned with stones and burned with fire. About this time, however, such holocausts of justice were suppressed among the Jews, and a law enacted that henceforth “the fathers shall not be put to death, for the children, neither shall the children be put to death for the fathers, every man shall be put to death for his own sin;” or, as Jeremiah expresses it figuratively, the children’s teeth were to be no longer set on edge by the sour grapes which their fathers had eaten. Yet the persistency of time-honoured custom and its power of overriding new statutes are seen in the fact that, several centuries later, at the request of the Gibeonites, whom it had become desirable to conciliate, David did not scruple to deliver up to them seven of Saul’s sons to be hanged for the evil which their father had wrought in slaying these foes of Israel. It would have been a parallel case if Bismarck had sought to win the friendship and favour of the French by giving into their hands the descendants of Blücher to be guillotined on the Place de la Concorde, or, after having made a political pilgrimage to Canossa, should surrender the children of Dr. Falk to be racked and burned at the stake by the ultramontanes.
According to the current orthodox theology, treason against God, committed by our common progenitor, worked “corruption of blood” in the whole human race, all the children of men being attainted with guilt in consequence of the act of their first parent. This crude and brutal conception of justice is the survival of a primitive and barbarous state of society, and it is curious to observe how the most highly civilized peoples, who have outgrown this notion and set it aside in the secular relations of man to man, still cling to it as something sacred and sublime in the spiritual relations of man to the deity. Only the all-wise and all-powerful sovereign of the universe is supposed to continue to administer law and justice on principles which common-sense and the enlightened opinion of mankind have long since abrogated and banished from earthly legislation. Thus the divine government, instead of keeping pace with the progress of human institutions, still corresponds to the ideals of right and retribution entertained by savage tribes and the lowest types of mankind.
The horrible mutilations to which criminals were formerly subjected, originated in an endeavour to administer strictly even-handed justice. What could be fairer or more fit than to punish perjury by cutting off the two fingers which the perjurer had held up in taking the violated oath? It was a popular belief that the fingers of an undetected perjurer would grow out of the grave after death, seeking retributive amputation, as a plant seeks the light, and that his ghost would never rest until this penalty had been inflicted. (See Heinrich Roch: Schles. Chron., p. 267, where a case of this kind is recorded.) The Carolina (constitutio criminalis Carolina), although in many respects an advance on mediæval penal legislation, doomed incendiaries to be burned alive; and an old law, cited by Döpler (Theat. Poen., II. 271), condemned a man who had dug up and removed a boundary stone to be buried in the earth up to his neck and to have his head plowed off with a new plow, thus symbolizing in his own person the grave offence which he had committed. Ivan Basilovitch, a Muscovite prince, ordered that an ambassador, who did not uncover in his presence, should have his hat nailed to his head; and it is a feeble survival of the same idea of proper punishment that makes the American farmer nail the dead hawk to his barn-door, just as in former times it was customary to crucify highway robbers at cross-roads.
According to an old Roman law ascribed to Numa Pompilius, the oxen which plowed up a boundary stone, as well as their driver, were sacrificed to Jupiter Terminus. In the early development of agriculture, and the transition from communal to personal property in land, this severe enactment was deemed necessary to the protection of the “sacra saxa,” by which the boundary lines of the fields were defined. Only by making the violation of enclosed ground a sacrilege was it possible to prevent encroachments upon it, so strong was the lingering prejudice against individual possessions of this kind running in the blood of a people descended from nomadic tribes of herdsmen, who regarded sedentary communities engaged in tilling the soil as their direst foes. The lawgiver knew very well that the oxen were involuntary agents, and that the plowman alone was culpable; but when a religious atonement is to be made and an angry god appeased, moral distinctions determining degrees of responsibility are uniformly ignored, and the innocent are doomed to suffer with the guilty. The oxen were tainted by the performance of an act, in which the exercise of their will was not involved, and must therefore be consigned to the offended deity. The same is true of the plowman, who did not escape immolation even when the motio termini or displacement of the boundary stone occurred unintentionally.
That the feeling, which found expression in such enactments and usages and survives in schemes of expiation and vicarious sacrifice, lies scarcely skin-deep under the polished surface of our civilization, is evident from the force and suddenness with which it breaks out under strong excitement, as when Cincinnati rioters burn the court-house because they suspect the judges of venality and are dissatisfied with the verdicts of the juries. The primitive man and the savage, like the low and ignorant masses of civilized communities, do not take into consideration whether the objects from which they suffer injury are intelligent agents or not, but wreak their vengeance on stocks and stones and brutes, obeying only the rude instinct of revenge. The power of restraining these aboriginal propensities, and of nicely analyzing actions and studying mental conditions in order to ascertain degrees of moral responsibility, presupposes a high degree of mental development and refinement and great acuteness of psychological perception, and is, in fact, only a recent acquisition of a small minority of the human race. The vast bulk of mankind will have to pass through a long process of intellectual evolution, and rise far above their present place in the ascending scale of culture before they attain it.