Of the connection between punishment and the belief in supernatural agencies many instances are found already in the savage world.[199] The great severity with which certain infractions of custom are punished has obviously a superstitious origin. In Polynesia, according to Ellis, “the prohibitions and requisitions of the tabu were strictly enforced, and every breach of them punished with death, unless the delinquents had some very powerful friends who were either priests or chiefs.[200] Among the western tribes of Torres Straits, “death was the penalty for infringing the rules connected with the initiation period i.e., for sacrilege.”[201] Among the Port Lincoln aborigines the women and children are not allowed to see any of the initiation ceremonies, and “any impertinent curiosity on their part is punishable with death, according to the ancient custom.”[202] Among the Masai, who believe that the boiling of milk will cause the cows to run dry, “any one caught doing so can only atone for the sin with a fearfully heavy fine, or, failing that, the insult to the holy cattle will be wiped out in his blood.”[203] The penalty of death which is frequently imposed on incest or other sexual offences is largely due to the influence of religious or superstitious beliefs.[204] And in various cases of sacrilege the offender is offered up as a sacrifice to the resentful god.[205]
[199] Steinmetz, Ethnol. Studien zur ersten Entwicklung der Strafe, ii. 340 sq. The connection between punishment and religion has been emphasised by Prof. Durkheim (Division du travail social, p. 97 sqq.) and M. Mauss (‘La religion et les origines du droit pénal,’ in Revue de l’histoire des religions, vols. xxxiv. and xxxv.). But Prof. Durkheim exaggerates the importance of this connection by assuming (p. 97) that “le droit pénal à l’origine était essentiellement religieux.”
[200] Ellis, Tour through Hawaii, p. 394. Cf. Olmsted, Incidents of a Whaling Voyage, p. 248 sq.; Mauss, in op. cit. xxxv. 55.
[201] Haddon, ‘Ethnography of the Western Tribes of Torres Straits,’ in Jour. Anthr. Inst. xix. 335.
[202] Schürmann, ‘Aboriginal Tribes of Port Lincoln,’ in Woods, Native Tribes of South Australia, p. 234.
[203] Johnston, Kilima-njaro Expedition, p. 425.
[204] See infra, on [Sexual Morality].
[205] See infra, on [Human Sacrifice].
According to Hebrew notions, it is man’s duty to avenge offences against God; every crime involves a breach of God’s law, and is punishable as such, and hardly any punishment is too severe to be inflicted on the ungodly.[206] These ideas were adopted by the Christian Church and by Christian governments.[207] The principle stated in the Laws of Cnut, that “it belongs very rightly to a Christian king that he avenge God’s anger very deeply, according as the deed may be,”[208] was acted upon till quite modern times, and largely contributed to the increasing severity of the penal codes. It was therefore one of the most important steps towards a more humane legislation when, in the eighteenth century, this principle was superseded by the contrary doctrine, “Il faut faire honorer la Divinité, et ne la venger jamais.”[209]
[206] Cf. Robertson Smith, Religion of the Semites, p. 162 sq.