target="_blank" rel="nofollow" href="#ulink_d7c09460-7623-5842-a49d-6add5533b836">160 Laing, Travels, p. 365.
161 Tucker, Expedition to Explore the River Zaire, p. 383.
162 Bosman, op. cit. p. 331.
163 New, op. cit. p. 111.
164 Beverley, in Steinmetz, Rechtsverhältnisse, p. 215.
165 Lang, ibid. p. 259.
166 Casalis, op. cit. p. 228.
167 Maclean, Compendium of Kafir Laws and Customs, p. 35 sq.
Nor, as it seems, is savage justice fond of torturing its victims before they are killed. The Maoris exclaimed loudly against the English method of executing criminals, first telling them that they are to die, then letting them lie for days and nights in prison, and finally leading them slowly to the gallows. “If a man commits a crime worthy of death,” they said, “we shoot him, or chop off his head; but we do not tell him first that we are going to do so.”168 Dr. Codrington gives the following description of the cases of burning persons alive which have occasionally happened in Pentecost Island:—“In fighting time there, if a great man were very angry with the hostile party, he would burn a wounded enemy. When peace had been made and the chiefs had ordered all to behave well that the country might settle down in quiet, if any one committed such a crime as would break up the peace, such as adultery, they would tie him to a tree, heap fire-wood round him, and burn him alive, a proof to the opposite party of their detestation of his wickedness. This was not done coolly as a matter of course in the execution of a law, but as a horrible thing to do, and done for the horror of it; a horror renewed in the voice and face of the native who told me of the roaring flames and shrieks of agony.”169 This story is not without interest when compared with the cold-blooded burning of female criminals and women suspected of witchcraft in Christian Europe.
168 Yate, Account of New Zealand, p. 105.
169 Codrington, op. cit. p. 347.
There is sufficient evidence to show that the severe punishments adopted by peoples of a higher culture have been regarded by them as beneficial to society. The legislators themselves often refer to the deterrent effects of punishment.
The Peruvian Incas considered that light punishments gave confidence to evil-doers, whilst “through their great care in punishing a man’s first delinquency, they avoided the effects of his second and third, and of the host of others that are committed in every commonwealth where no diligence is observed to root up the evil plant at the commencement.”170 According to the Prefatory Edict of the Emperor Kaung-hee, published in 1679, the chief ends proposed by the institution of punishments in the Chinese Empire “have been to guard against violence and injury, to repress inordinate desires, and to secure the peace and tranquillity of an honest and unoffending community.”171 In the Laws of Manu punishment is described as a protector of all creatures:—“If the king did not, without tiring, inflict punishment on those worthy to be punished, the stronger would roast the weaker, like fish on a spit; the crow would eat the sacrificial cake and the dog would lick the sacrificial viands, and ownership would not remain with any one, the lower ones would usurp the place of the higher ones. The whole world is kept in order by punishment, for a guiltless man is hard to find; through fear of punishment the whole world yields the enjoyments which it owes.”172 Even the gods, the Dânavas, the Gandharvas, the Râkshasas, the bird and snake deities, give the enjoyments due from them only if they are tormented by the fear of punishment.173 In mediæval law-books determent is frequently referred to as an object of punishment.174 And in more modern times, till the end of the eighteenth century at least, the idea that punishment should inspire fear was ever present to the minds of legislators.
170 Garcilasso de la Vega, op. cit. i. 151 sq.
171 Ta Tsing Leu Lee, p. lxvii.
172 Laws of Manu, vii. 14, 15, 20–22, 24 sq.
173 Ibid. vii. 23.
174 Leges Burgundionum, Leges Gundebati, 52: “Rectius enim paucorum condempnatione multitudo corregitur, quam sub specie incongruae civilitatis intromittatur occasio, quae licentiam tribuat delinquendi.” Capitulare Aquisgranense An. 802, 33: “Sed taliter hoc corripiantur, ut caeteri metum habeant talia perpetrandi” (Migne, Patrologiæ cursus, xcvii. 230). Chlotar II. Edictum de Synodo Parisiensi, 24: “In ipsum capitali sententia judicetur, qualiter alii non debeant similia perpetrare” (Migne, op. cit. lxxx. 454). For other instances, see Brunner, Deutsche Rechtsgeschichte, ii. 588, n. 6.
The same idea is also conspicuous in the practice of punishing criminals in public.175 A petty thief in the pillory and a scold on the cucking-stool were, in earlier times, spectacles familiar to everybody, whilst persons still living remember seeing offenders publicly whipped in the streets. “A gallows or tree with a man hanging upon it,” says Mr. Wright, “was so frequent an object in the country that it seems to have been almost a natural ornament of a landscape, and it is thus introduced by no means uncommonly in mediæval manuscripts.”176 In atrocious cases it was usual for the court to direct the murderer, after execution, to be hung upon a gibbet in chains near the place where the fact was committed, “with the intention of thereby deterring others from capital offences”; and in order that the body might all the longer serve this useful purpose, it was saturated with tar before it was hung in chains.177 The popularity which mutilation as a punishment enjoyed during the Middle Ages was largely due to the opinion, that “a malefactor miserably living was a more striking example of justice than one put to death at once.”178
175 Günther, Die Idee der Wiedervergeltung, i. 211 sq. n. 31.
176 Wright, History of Domestic Manners and Sentiments in England during the Middle Ages, p. 346.
177 Holinshed, op. cit. i. 311. Blackstone, Commentaries on the Laws