Another circumstance worth mentioning is, that in earlier times the detection of criminals was much rarer and more uncertain than it is now.[184] It has been argued on utilitarian grounds that, “to enable the value of the punishment 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.”[185] 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 indignation of the public turns against him, and he becomes a scapegoat for all the rest.
[184] Cf. Morrison, Crime and its Causes, p. 175.
[185] Bentham, Principles of Morals and Legislation, p. 184. Cf. Paley, Moral and Political Philosophy, vi. 9 (Complete Works, ii. 371).
However, the chief explanation of the great severity of certain criminal codes lies in their connection with despotism or religion or both.[186] An act which is prohibited 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.
[186] This has been previously pointed out by Prof. Durkheim, in his interesting essay, ‘Deux lois de l’évolution pénale’ (L’année sociologique, iv. [1899–1900], p. 64 sqq.), with which I became acquainted only when the present chapter was already in type. Montesquieu observes (De l’esprit des lois, vi. 9 [Œuvres, p. 231]), “Il serait aisé de prouver que, dans tous ou presque tous les États d’Europe, les peines ont diminué ou augmenté à mesure qu’on s’est plus approché ou plus éloigné de la liberté.”
Various 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.[187] In Madagascar, also, “death was formerly inflicted for almost every offence.”[188] 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 slave 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.”[189] 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.[190] 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.”[191]
[187] Ellis, Tshi-speaking Peoples of the Gold Coast, p. 166.
[188] Ellis, History of Madagascar, i. 374.
[189] Ashe, Two Kings of Uganda, p. 293. Cf. Wilson and Felkin, Uganda and the Egyptian Soudan, i. 201.