[116] See infra, on [Blood-revenge].
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]
[117] Rée, Ursprung der moralischen Empfindungen, p. 45 sqq. Idem, Entstehung des Gewissens, p. 190 sqq.
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]
[118] Bancroft, Native Races of the Pacific States, ii. 454.
[119] Clavigero, History of Mexico, i. 358.
[120] Ibid. i. 359.
[121] Ibid. i. 355.
[122] Bancroft, op. cit. ii. 465 sq.