[169] Codrington, op. cit. p. 347.
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.
The Peruvian Incas considered that light punishments gave 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 committed in every commonwealth where no diligence is observed to root up the evil plant at the commencement.”[170] According to the Prefatory Edict of the Emperor Kaung-hee, published in 1679, the chief ends proposed by the institution of punishments 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 community.”[171] 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 sacrificial 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.”[172] Even the gods, the Dânavas, the Gandharvas, the Râkshasas, the bird and snake deities, give the enjoyments due from them only if they are tormented by the fear of punishment.[173] In mediæval law-books determent is frequently referred to as an object of punishment.[174] And in more modern times, till the end of the eighteenth century at least, the idea that punishment should inspire fear was ever present to the minds of legislators.
[170] Garcilasso de la Vega, op. cit. i. 151 sq.
[171] Ta Tsing Leu Lee, p. lxvii.
[172] Laws of Manu, vii. 14, 15, 20-22, 24 sq.
[173] Ibid. vii. 23.
[174] Leges Burgundionum, Leges Gundebati, 52: “Rectius enim paucorum condempnatione multitudo corregitur, quam sub specie incongruae civilitatis intromittatur occasio, quae licentiam tribuat delinquendi.” Capitulare Aquisgranense An. 802, 33: “Sed taliter hoc corripiantur, ut caeteri metum habeant talia perpetrandi” (Migne, Patrologiæ cursus, xcvii. 230). Chlotar II. Edictum de Synodo Parisiensi, 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.
The same idea is also conspicuous in the practice of punishing criminals in public.[175] 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 means uncommonly in mediæval manuscripts.”[176] 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.[177] 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.”[178]
[175] Günther, Die Idee der Wiedervergeltung, i. 211 sq. n. 31.