[176] Wright, History of Domestic Manners and Sentiments in England during the Middle Ages, p. 346.
[177] Holinshed, op. cit. i. 311. Blackstone, Commentaries on the Laws of England, iv. 201. Cox, ‘Hanging in Chains,’ in The Antiquary, xxii. 213 sq.
[178] Strutt, View of the Manners, &c. of the Inhabitants of England, ii. 8.
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 interpretation.[179] “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.’”[180] 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 which sentence was passed; indeed, “not one in twenty of the sentences was carried into execution.”[181] This discrepancy 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 observed 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.”[182] 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.”[183]
[179] Staunton, in his Preface to Ta Tsing Leu Lee, p. xxvii. sq.
[180] Wells Williams, op. cit. i. 392 sq.
[181] Stephen, op. cit. i. 471. May, op. cit. ii. 597.
[182] May, op. cit. ii. 597.
[183] Andrews, op. cit. p. 218. Cf. Olivecrona, Om dödsstraffet, p. x.