187 Ellis, Tshi-speaking Peoples of the Gold Coast, p. 166.
188 Ellis, History of Madagascar, i. 374.
189 Ashe, Two Kings of Uganda, p. 293. Cf. Wilson and Felkin, Uganda and the Egyptian Soudan, i. 201.
190 Kollmann, Victoria Nyanza, p. 431.
191 Ellis, Tour through Hawaii, p. 431.
In the old monarchies of America and Asia there was an obvious connection between the punishments prescribed by their laws and the religious-autocratic form of their governments. According to Garcilasso de la Vega, the Peruvians—among whom the most common punishment was death—maintained “that a culprit was not punished for the delinquencies he had committed, but for having broken the commandment of the Ynca, who was respected as God,” and that, viewed in this light, the slightest offence merited to be punished with death.192 In China the Emperor was regarded as the vicegerent of Heaven especially chosen to govern all nations, and was supreme in everything, holding at once the highest legislative and executive powers, without limit or control.193 According to ancient Japanese ideas, “the duty of a good Japanese consists in obeying the Mikado, without questioning whether his commands are right or wrong. The Mikado is god and vicar of all the gods, hence government and religion are the same.”194 In Rome the criminal law, which for a long time was characterised by great moderation,195 gradually grew more severe according as absolutism made progress. Sylla, the dictator, not only put thousands of citizens to death by proscription without any form of trial, but fixed, in the Cornelian criminal code, for heinous offences the punishment called aquæ et ignis interdictio. Under the Emperors some new and cruel capital punishments were introduced, such as burning alive and exposing to wild beasts; whilst at the same time offences such as driving away horses or cattle were made capital.196 In mediæval and modern Europe the increase of the royal power was accompanied by increasing severity of the penal codes. Every crime came to be regarded as a crime against the King. Indeed, breach of the King’s peace became the foundation of the whole Criminal Law of England; the right of pardon, for instance, as a prerogative of the Crown, took its origin in the fact that the King was supposed to be injured by a crime, and could therefore waive his remedy.197 And the King was not only regarded as the fountain of social justice, but as the earthly representative of the heavenly lawgiver and judge.198
192 Garcilasso de la Vega, op. cit. i. 145.
193 Wells Williams, op. cit. i. 393.
194 Griffis, Religions of Japan, p. 92. Cf. Idem, Mikado’s Empire, p. 100.
195 Cf. Livy, x. 9; Polybius, vi. 14; Gibbon, History of the Decline and Fall of the Roman Empire, v. 318, 326.
196 Mackenzie, Studies in Roman Law, pp. 408, 409, 414. Gibbon, op. cit. v. 320. Cf. Mommsen, Römisches Strafrecht, p. 943.
197 Cherry, Growth of Criminal Law in Ancient Communities, pp. 68, 105.
198 Henke, Grundriss einer Geschichte des deutschen peinlichen Rechts, ii. 310. Abegg, Die verschiedenen Strafrechtstheorieen, p. 117. Du Boys, Histoire du droit criminel de l’Espagne, p. 323.
Of the connection between punishment and the belief in supernatural agencies many instances are found already in the savage world.199 The great severity with which certain infractions of custom are punished has obviously a superstitious origin. In Polynesia, according to Ellis, “the prohibitions and requisitions of the tabu were strictly enforced, and every breach of them punished with death, unless the delinquents had some very powerful friends who were either priests or chiefs.200 Among the western tribes of Torres Straits, “death was the penalty for infringing the rules connected with the initiation period i.e., for sacrilege.”201 Among the Port Lincoln aborigines the women and children are not allowed to see any of the initiation ceremonies, and “any impertinent curiosity on their part is punishable with death, according to the ancient custom.”202 Among the Masai, who believe that the boiling of milk will cause the cows to run dry, “any one caught doing so can only atone for the sin with a fearfully heavy fine, or, failing that, the insult to the holy cattle will be wiped out in his blood.”203 The penalty of death which is frequently imposed on incest or other sexual offences is largely due to the influence of religious or superstitious beliefs.204 And in various cases of sacrilege the offender is offered up as a sacrifice to the resentful god.205
199 Steinmetz, Ethnol. Studien zur ersten Entwicklung der Strafe, ii. 340 sq. The connection between punishment and religion has been emphasised by Prof. Durkheim (Division du travail social, p. 97 sqq.) and M. Mauss (‘La religion et les origines du droit pénal,’ in Revue de l’histoire des religions, vols. xxxiv. and xxxv.). But Prof. Durkheim exaggerates the importance of this connection by assuming (p. 97) that “le droit pénal à l’origine était essentiellement religieux.”
200 Ellis, Tour through Hawaii, p. 394. Cf. Olmsted, Incidents of a Whaling Voyage, p. 248 sq.; Mauss, in op. cit. xxxv. 55.
201 Haddon, ‘Ethnography of the Western Tribes of Torres Straits,’ in Jour. Anthr. Inst. xix. 335.
202 Schürmann, ‘Aboriginal Tribes of Port Lincoln,’ in Woods, Native Tribes of South Australia, p. 234.
203 Johnston, Kilima-njaro Expedition, p. 425.
204 See infra, on Sexual Morality.