which represent public opinion are no more than customs safe exponents of the moral ideas held by particular members of the society. But on the other hand, there are cases in which a law, unlike a custom, may express the ideas, or simply the will, of a few, or even of a single individual, that is, of the sovereign power only. It is obvious that laws imposed upon a barbarous people by civilised legislators may differ widely from the people’s own ideas of right and wrong. For instance, when studying the moral sentiments of the Teutonic peoples from their early law-books, we must carefully set aside all elements of Roman or Christian origin. At the same time, however, it should be remembered that the moral consciousness of a people may gradually be brought into harmony with a law originally foreign to it. If the law is in advance of public opinion—as Roman law undoubtedly was in Teutonic countries—it may raise the views of the people up to its own standard by awaking in them dormant sentiments, or by teaching them greater discrimination in their judgments. And, as has been already noticed, what is forbidden and punished may, for the very reason that it is so, come to be regarded as wrong and worthy of punishment.
Finally, a law may enjoin or forbid acts which by themselves are regarded as indifferent from a moral point of view. This is, for instance, the case with the laws which require marriages to be celebrated at certain times and places only, and which forbid the cultivation of tobacco in England. Jurists divide crimes into mala in se and mala quia prohibita. The former would be wrong even if they were not prohibited by law, the latter are wrong only because they are illegal.
A law expresses a rule of duty by making an act or omission which is regarded as wrong a crime, that is, by forbidding it under pain of punishment. Law does not in all cases directly threaten38 with punishment—I say directly, since all law is coercive, and all coercion at some stage involves the possibility of punishment.39 Sanctions, or the consequences by which the sovereign political authority threatens to enforce the laws set by it, may have in view either the indemnification of the injured party, or the suffering of the injurer. In the latter case the sanctions are called punishments. But, though highly important, the distinction between indemnification and punishment is not absolute. A person who causes harm to another would hardly have to pay damages unless some kind of guilt or quasi-guilt were imputed to him; and, on the other hand, punishment may actually consist in the damages he has to pay. Moreover, the suffering involved in punishment must be regarded as a kind of indemnification in so far as it is intended to gratify the injured party’s craving for revenge. The pleasure of vengeance, says Bentham, “is a gain; it calls to mind Samson’s riddle—it is sweet coming out of the terrible, it is honey dropping from the lion’s mouth.”40 In cases where the injured party is allowed to decide whether the injurer shall be punished or not, or what punishment (within certain limits) shall be inflicted upon him, it is obvious that punishment is largely looked upon as a means of indemnification. However, the fact that such a privilege is granted to the injured party indicates the existence of some degree of sympathetic resentment in the public. Punishment, in all its forms, is essentially an expression of indignation in the society which inflicts it.41 Hence it is of extreme importance for the study of moral ideas, and calls for our careful consideration.
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.
44 Kane, Arctic Explorations, ii. 128 sq.
45 Nansen, Eskimo Life, p. 267 sq.
46 Adair, History of the American Indians, p. 429 sq.
In other instances the community as a whole expresses its indignation by inflicting suffering of a more material kind upon the culprit.
In certain Australian tribes, when a native for any transgression incurs