xxii. 213 sq.
178 Strutt, View of the Manners, &c. of the Inhabitants of England, ii. 8.
We shall now consider whether these facts really contradict our thesis that punishment is essentially an expression of public indignation.
It may, first, be noticed that the punishment actually inflicted on the criminal is in many cases much less severe than the punishment with which the law threatens him. In China the execution of the law is, on the whole, lenient in comparison with its literal and prima facie interpretation.179 “Many of the laws seem designed to operate chiefly in terrorem, and the penalty is placed higher than the punishment really intended to be inflicted, to the end that the Emperor may have scope for mercy, or, as he says, ‘for leniency beyond the bounds of the law.’ ”180 In Europe, during the Middle Ages, malefactors frequently received charters of pardon, and in later times it became a favourite theory that it was good policy, in framing penal statutes, to make as many offences as possible capital, and to leave to the Crown to relax the severity of the law. In England, about the beginning of the nineteenth century, the punishment of death was actually inflicted in only a small proportion of the cases in which sentence was passed; indeed, “not one in twenty of the sentences was carried into execution.”181 This discrepancy between law and practice bears witness, not only to the extent to which the minds of legislators were swayed by the idea of inspiring fear, but to the limitation of determent as a penal principle. It has been observed that the excessive severity of laws hinders their execution. “Society revolted against barbarities which the law prescribed. Men wronged by crimes, shrank from the shedding of blood, and forbore to prosecute: juries forgot their oaths and acquitted prisoners, against evidence: judges recommended the guilty to mercy.”182 Yet, in spite of all such deductions, there can be no doubt that the hangman had plenty to do. Hanging persons, says Mr. Andrews, was almost a daily occurrence in the earlier years of the nineteenth century, “for forging notes, passing forged notes, and other crimes which we now almost regard with indifference.”183
179 Staunton, in his Preface to Ta Tsing Leu Lee, p. xxvii. sq.
180 Wells Williams, op. cit. i. 392 sq.
181 Stephen, op. cit. i. 471. May, op. cit. ii. 597.
182 May, op. cit. ii. 597.
183 Andrews, op. cit. p. 218. Cf. Olivecrona, Om dödsstraffet, p. x.
Another circumstance worth mentioning is, that in earlier times the detection of criminals was much rarer and more uncertain than it is now.184 It has been argued on utilitarian grounds that, “to enable the value of the punishment to outweigh that of the profit of the offence, it must be increased, in point of magnitude, in proportion as it falls short in point of certainty.”185 But the rareness of detection would also for purely emotional reasons tend to increase the severity of the punishment. When one criminal out of ten or twenty is caught, the accumulated indignation of the public turns against him, and he becomes a scapegoat for all the rest.
184 Cf. Morrison, Crime and its Causes, p. 175.
185 Bentham, Principles of Morals and Legislation, p. 184. Cf. Paley, Moral and Political Philosophy, vi. 9 (Complete Works, ii. 371).
However, the chief explanation of the great severity of certain criminal codes lies in their connection with despotism or religion or both.186 An act which is prohibited by law may be punished, not only on account of its intrinsic character, but for the very reason that it is illegal. When the law is, from the outset, an expression of popular feelings, the severity of the penalty with which it threatens the transgressor depends, in the first place, on the public indignation evoked by the act itself, independently of the legal prohibition of it. But the case is different with laws established by despotic rulers or ascribed to divine lawgivers. Such laws have a tendency to treat criminals not only as offenders against the individuals whom they injure or against society at large, but as rebels against their sovereign or their god. Their disobedience to the will of the mighty legislator incurs, or is supposed to incur, his anger, and is, in consequence, severely resented. But however severe they be, the punishments inflicted by the despot on disobedient subjects are not regarded as mere outbursts of personal anger. In the archaic State the king is an object of profound regard, and even of religious veneration. He is looked upon as a sacred being, and his decrees as the embodiment of divine justice. The transgression of any law he makes is, therefore, apt to evoke a feeling of public indignation proportionate to the punishment which he pleases to inflict on the transgressor. Again, as to acts which are supposed to arouse the anger of invisible powers, the people are anxious to punish them with the utmost severity so as to prevent the divine wrath from turning against the community itself. But the fear which, in such cases, lies at the bottom of the punishment, is certainly combined with genuine indignation against the offender, both because he rebels against God and religion, and because he thereby exposes the whole community to supernatural dangers.
186 This has been previously pointed out by Prof. Durkheim, in his interesting essay, ‘Deux lois de l’évolution pénale’ (L’année sociologique, iv. [1899–1900], p. 64 sqq.), with which I became acquainted only when the present chapter was already in type. Montesquieu observes (De l’esprit des lois, vi. 9 [Œuvres, p. 231]), “Il serait aisé de prouver que, dans tous ou presque tous les États d’Europe, les peines ont diminué ou augmenté à mesure qu’on s’est plus approché ou plus éloigné de la liberté.”
Various facts might be quoted in support of this explanation. Whilst the punishments practised among the lower races generally, are not conspicuous for their severity, there are exceptions to this rule among peoples who are governed by despotic rulers.
Under the Ashanti code, even the most trivial offences are punishable with death.187 In Madagascar, also, “death was formerly inflicted for almost every offence.”188 In Uganda the ordinary punishments were “death by fire, being hacked to pieces by reed splinters, fine, imprisonment in the stocks mvuba, or in the slave fork kaligo, also mutilation. It is most common to see people deprived of an eye, or in some cases of both eyes; persons lacking their ears are also frequently met with.”189 Among the Wassukuma, whose chieftains used to have power of life and death over their subjects, a person who was guilty of disobedience to his ruler, or of some action which the ruler considered wicked and punishable, was condemned to death.190 In the Sandwich Islands, “a chief takes the life of one of his own people for any offence he may commit, and no one thinks he has a right to interfere.”