[38] “Not every sovereign can make sure of enforcing his commands; and sometimes laws are made without even any great intention of enforcing them” (Pollock, Essays in Jurisprudence and Ethics, p. 9 sq.).
[39] Cf. Stephen, op. cit. i. 2.
[40] Bentham, Theory of Legislation, p. 309.
[41] “Die Missbilligung ist das Wesentliche aller Strafe” (von Bar, Die Grundlagen des Strafrechts, p. 4). “La peine consiste dans une réaction passionnelle d’intensité graduée” (Durkheim, Division du travail social, p. 96).
By punishment I do not understand here every suffering inflicted upon an offender in consequence of his offence, but only such suffering as is inflicted upon him in a definite way by, or in the name of, the society of which he is a permanent or temporary member. This definition holds good whatever may be the opinion about the final object of punishment. Whether its purpose is, or is supposed to be, either reformation, or determent, or retribution, its immediate aim is always to cause suffering. We should not call it punishment if the reformation of the criminal were attempted, say, by means of hypnotism.
It is a common opinion that punishment, in this sense of the word, is a social institution of comparatively modern origin, which has sprung from, and gradually superseded, the earlier custom of individual or family revenge. This opinion may seem plausible to the student of European and Eastern law, but, as we shall see, the early history of civilised races is apt to give a somewhat erroneous idea of the evolution of punishment. Even among savages public indignation frequently assumes that definite shape which constitutes the difference between punishment and mere condemnation.[42]
[42] See Steinmetz, Ethnologische Studien zur ersten Entwicklung der Strafe, ii. 327 sqq.; Makarewicz, Évolution de la peine, passim.
Savage punishment sometimes simply consists in publicly putting the offender to shame.
In Greenland the courts of justice were the public assemblies, which at the same time supplied the national sports and entertainments. Here “nith-songs” were used for settling all sorts of crimes or breaches of public order or custom, with the exception of those which could only be expiated by death; by means of cutting capers and singing, the offender was told of his faults, and the opposite virtues were praised to all who were present.[43] The same institution is found, with only incidental differences, among several other tribes within and beyond the Arctic circle.[44] And, knowing the sensitiveness of these peoples, we may assume that the punishment in question is by no means lenient. In Greenland “it now and then happens that some one or other, wounded, perhaps, by a single word from one of his kinsfolk, runs away to the mountains, and is lost for several days at least.”[45] And Adair, speaking of the public jesting by which North American Indians used to punish young people who were guilty of petty crimes, says that “they would sooner die by torture, than renew their shame by repeating the actions.”[46]
[43] Rink, Eskimo Tribes, p. 24 sq. Idem, Greenland, pp. 141, 150. Cranz, op. cit. i. 165 sq. Holm, ‘Ethnologisk Skizze af Angmagsalikerne,’ in Meddelelser om Grönland, p. 87.