rel="nofollow" href="#ulink_4d8e8503-6ef5-5574-8215-62a68b0d1600">104 Falkner, Description of Patagonia, p. 123. Anderson, Lake Ngami, p. 231 (Damaras).
Thus among some Australian tribes, “a man accused of a serious offence gets a month’s citation to appear before the tribunal, on pain of death if he disobeys. If he is found guilty of a private wrong, he is painted white, and made to stand out at fifty paces in front of the accuser and his friends, all fully armed. They throw at him a shower of spears and ‘bumarangs,’ from which he protects himself with a light shield.”105 Among the Aricara Indians of the Missouri, who, for the most part, punish murder with death, the nearest relative of the murdered man was deputed by the council to act the part of executioner.106 With reference to the natives of Bali, Raffles says that “in the execution of the punishment awarded by the court there is this peculiarity, that the aggrieved party or his friends are appointed to inflict it.”107 In some parts of Afghanistan, “if the offended party complains to the Sirdar, or if he hears of a murder committed, he first endeavours to bring about a compromise, by offering the Khoon Behau, or price of blood; but if the injured party is inexorable, the Sirdar lays the affair before the King, who orders the Cauzy to try it; and, if the criminal is convicted, gives him up to be executed by the relations of the deceased.”108 Among the peoples round Lake Nyassa and Tanganyika and among the Bantu tribes generally, “when a murderer is caught and proved guilty he is given over to the relatives of the person murdered, who have power to dispose of him as they choose.”109 A similar practice prevails among the Mishmis,110 Bataks,111 and Kamchadales.112 It was also recognised by early Slavonic,113 Teutonic, and English codes.114 According to the provisions of a code granted so late as 1231, by the Abbey of St. Bertin to the town of Arques, when a man was convicted of intentional homicide, he was handed over to the family of the murdered person, to be slain by them.115
105 Fraser, Aborigines of New South Wales, p. 40 sq.
106 Bradbury, Travels in the Interior of America, p. 168.
107 Raffles, op. cit. ii. p. ccxxxvii.
108 Elphinstone, Kingdom of Caubul, ii. 105 sq.
109 Macdonald, in Jour. Anthr. Inst. xxii. 108.
110 Cooper, Mishmee Hills, p. 238.
111 von Brenner, op. cit. p. 212.
112 Georgi, Russia, iii. 137.
113 Macieiowski, Slavische Rechtsgeschichte, ii. 127.
114 Wilda, Strafrecht der Germanen, p. 167. Lex Salica, 68. Laws of Cnut, i. 53. Leges Henrici I. lxxi. 1.
115 Leges villæ de Arkes ab abbate S. Bertini concessæ, 28 (d’Achery, Spicilegium, iii. 608).
But although, in innumerable cases, punishment and judicial organisation have succeeded a previous system of revenge, and thus are products of social development, their existence or non-existence among a certain people is no exact index to the general state of culture which that people has attained. Even among low savages we have noticed instances of punishments which are inflicted by the community as a whole, as also by special judicial authorities. On the other hand, we are taught by the history of European and Oriental nations, that the system of revenge is not inconsistent with a comparatively high degree of culture.116 We can now see the reason for this apparent anomaly. In a small savage community, all the members of which are closely united with each other, an injury inflicted upon one is readily felt by all. The case may be different in a State consisting of loosely-connected social components, which, though forming a political unity, have little communication between themselves, and take no interest in each other’s private dealings. And, whilst in the smaller society public resentment is thus more easily aroused, such a society also stands in more urgent need of internal peace.
116 See infra, on Blood-revenge.
Our assumption that punishment is, in the main, an expression of public indignation, is opposed to another theory, according to which the chief object of punishment, not only ought to be, but actually is, or has been, to prevent crime by deterring people from committing it. We are even told that punishment, inflicted for such a purpose, is, largely, at the root of the moral consciousness; that punishment is not the result of a sense of justice, but that the sense of justice is a result of punishment; that, by being punished by the State, certain acts gradually came to be regarded as worthy of punishment, in other words, as morally wrong.117
117 Rée, Ursprung der moralischen Empfindungen, p. 45 sqq. Idem, Entstehung des Gewissens, p. 190 sqq.
There are certain facts which seem to support the supposition that punishment has, to a large extent, been intended to act as a deterrent. We find that among various semi-civilised and civilised peoples the criminal law has assumed a severity which far surpasses the rigour of the lex talionis.
Speaking of the Azteks, Mr. Bancroft observes that “the greater part of their code might, like Draco’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.”118 The punishment of death was inflicted on the man who dressed himself like a woman, on the woman who dressed herself like a man,119 on tutors who did not give a good account of the estates of their pupils,120 on those who carried off, or changed, the boundaries placed in the fields by public authority;121 and should an adulterer endeavour to save himself by killing the injured husband, his fate was to be roasted alive before a slow fire, his body being basted with salt and water that death might not come to his relief too soon.122 Nor did the ancient Peruvian code economise human suffering by proportioning