PUNISHMENT OF CRIMES.
The Aztecs adopted numerous ways of punishing offenders against the law, as we shall see presently, but I do not think that imprisonment was largely resorted to. They had prisons, it is true, and very cruel ones, according to all accounts, but it appears that they were more for the purpose of confining prisoners previous to their trial, or between their condemnation and execution, than permanently, for punishment. These jails were of two classes, one called teilpiloyan for those imprisoned on a civil charge, another called quauhcalco,[517] for prisoners condemned to death. The cells were made like cages, and the prison was so constructed as to admit very little light or air;[518] the food was scanty and of a bad quality, so that, as Las Casas expresses it, the prisoners soon became thin and yellow, and commenced at the prison to suffer the death that was afterwards adjudged them. Clavigero, however, asserts that those condemned to the sacrificial stone were well fed in order that they might appear in good flesh at the sacrifice.[519] A very close watch was kept upon the captives, so much so, indeed, that if through the negligence of the guard a prisoner of war escaped from the cage, the community of the district, whose duty it was to supply the prisoners with guards, was obliged to pay to the owner of the fugitive, a female slave, a load of cotton garments, and a shield.[520] Mendieta says that these prisons were only used for persons awaiting trial on very grave charges; for, he writes, in the case of one held to answer on an ordinary charge, "it was sufficient for the minister of justice to place the prisoner in a corner with a few light sticks before him; indeed, I believe that to have merely drawn a line and told him not to pass it would have sufficed, even though he might have reason to believe that there was a heavy punishment in store for him, because to flee from justice, and escape, was an impossibility. At all events, I with my own eyes have seen a prisoner standing entirely unguarded save for the before-mentioned sticks."[521]
Like most semi-barbarous nations, the Aztecs were more prone to punish crime than to recompense virtue, and even when merit was rewarded, it was of the coarser and more material kind, such as valor in war or successful statesmanship. The greater part of their code might, like Dracon's, have been written in blood—so severe were the penalties inflicted for crimes that were comparatively slight, and so brutal and bloody were the ways of carrying those punishments into execution. In the strongest sense of the phrase the Aztecs were ruled with a rod of iron; but that such severity was necessary I have no doubt, inasmuch as whatever form of government exists, be it good or bad, that form of government is the necessary one, or it could have no existence. All young states must adopt harsh laws to secure the peace and well-being of the community, while as yet the laws of habit and usage are unestablished; and as that community progresses and improves, it will of itself mold its system of government to fit itself. The code of Dracon was superseded by that of Solon when the improved state of the Athenian community warranted a mitigation of the severity of the former, and in like manner the laws of Montezuma and Nezahualcoyotl would have given place to others less harsh had Aztec civilization been allowed to progress.
CODE OF LAWS.
The laws of the several Aztec kingdoms were essentially the same; some slight differences existed, however, and in these instances the code of Tezcuco proves the most rigid and severe, while more of lenience is exhibited in that of Mexico. I have before remarked that the majority of writers treat of the legislation of Tezcuco, but, as in other matters, many authorities who should be reliable surmount the difficulty of distinguishing that which belongs to one system of jurisprudence from that which belongs to another, by speaking generally of the code that existed in Nueva España, or among 'these people.' Most of the subjected provinces adopted the laws of the state to which they became subject. But this was by no means obligatory, because as conquered nations were not compelled to speak the language of their conquerors, neither were they forced to make use of their laws.[522] Let us now see what these laws were.
PUNISHMENT OF THEFT.
Theft was punished in various ways, and, it appears, not at all in proportion to the magnitude of the crime. Thus he who stole a certain number of ears of corn,[523] suffered death, while he who broke into the temples and stole therefrom, was enslaved for the first offence and hanged for the second, and it is distinctly stated[524] that in order to merit either of these punishments the theft must be an extensive one. In cases not specially provided for, it appears that a petty thief became the slave of the person from whom he had stolen; according to Ortega, however, the injured party had the privilege of refusing to accept the thief as a slave, in which case the latter was sold by the judges, and with the proceeds of the sale the complainant was reimbursed. The same writer states that in some cases a compromise could be effected by the offended party agreeing to be indemnified by the thief, in which case the latter paid into the treasury a sum equal to the amount stolen. This statement is somewhat obscure, inasmuch as it would be but poor satisfaction to the party robbed to see the equivalent of that robbery paid into the public treasury; but I understand the writer to mean that the loser had his loss made good, and that for the satisfaction of justice an equal amount was imposed as a fine upon the prisoner.[525] Theft of a large amount was almost invariably punished with death, which was inflicted in various ways. Usually the culprit was dragged ignominiously through the streets and then hanged;[526] sometimes he was stoned to death.[527] He who robbed on the highway was killed by having his head smashed with a club;[528] he who was caught in the act of pilfering in the market-place, no matter how trivial the theft, was beaten to death with sticks on the spot by the assembled multitude, for this was considered a most heinous sin; but notwithstanding the fearful risk incurred, it is asserted that many were so light-fingered that it was only necessary for a market woman to turn her head away, and her stall would be robbed in a trice. There was a regular judicial tribunal established for the settling of disputes in the general government of the market-place, of which I have had occasion to speak before; but this tribunal does not appear to have troubled itself much with persons who were caught in the act of stealing, as it seems to have been tacitly allowed to the people assembled in the market-place to exercise lynch law upon the culprit.[529]
Besides these general laws for the prevention of theft, there were others which prescribed special penalties for those who stole certain particular articles. For instance, Ortega tells us that the thief of silver or gold was skinned alive and sacrificed to Xipe, the tutelary divinity of the workers in precious metals, such a theft being considered a direct insult to the god.[530] In some of these cases fines were imposed. Among a collection of laws given by Las Casas, for the authenticity of which he does not vouch, "because," he says, "they were taken out of a little Indian book of no authority," we find the following relating to theft: If any one stole the plants, called maguey, from which they manufactured more than twenty articles, and which were used for making syrup, he was compelled to pay as a fine as many cotton cloths as the judges might decree, and if he was unable to pay the fine imposed, or if he had stolen more than twenty plants, he was enslaved. Whoever stole a fishing-net or a canoe was punished in the same manner. Whoever stole corn to the amount of twenty ears or upward, died for it, and if he took a less quantity, he paid that which he was sentenced to pay. He that plucked the corn before it had formed seed, suffered death. Whoever stole a tecomatl, "which is a little gourd tied at the top with strips of red hide, and having feather tassels at the end, used by the lords for carrying a green powder, from which they take in smoke through the mouth, the powder being called in the island of Española 'tabacos'—whoever stole one of these died for it." He that stole precious stones, and more especially the stone called chalchiuite, no matter from whence he took it, was stoned to death in the market-place, because no man of the lower orders was allowed to possess this stone.[531]
In Mexico, a distinction seems to have been made between the thief who reaped the benefit of his crime and him who did not; in other words, if the stolen property was recovered intact from the thief he was only enslaved, but if he had already disposed of his plunder he suffered death.[532] Whether the ultimate recovery of the property after it had passed from the thief's hands, would answer the same end, we are not told, but if not, then it would appear that according to Aztec jurisprudence the culprit was punished not so much in proportion to the actual injury he inflicted upon others, as in accordance with the actual extent of the crime he committed. In Michoacan, the first theft was not severely punished, but for the second offence the thief was thrown down a precipice and his carcass left to the birds of prey.[533]
The murderer suffered death even though he should be a noble and his victim but a slave.[534] In Michoacan, we are told by Herrera,[535] that there was no punishment for murder, since, through fear, the crime was never committed. Beaumont allows that for a time there were no murders, but says that afterwards they became frequent, and then the criminal was dragged along the ground until he died.[536] He who administered poison to another, thereby causing death, died for it, and the same punishment was awarded to him who furnished the poison.[537]