among primitive peoples the penal code was always short. desire for property had not taken possession of their emotions. their lives were simple, their adjustments few, and there was no call for an elaborate code of prohibited acts. their punishments were generally simple, direct and severe: usually death or banishment which often meant death, sometimes maiming and branding, so that the offender might serve as a constant warning to others.
primitive peoples early asked questions about their origin and destiny. the unknown filled most of the experiences of their lives. the realm of the known was very small. they had no idea of law and system, of cause and effect. they early began evolving religious ideas. the manifestations of nature, the mystery of birth, the fear of death, the phenomena of dreams, the growth and harvesting of crops—all of these were beyond their understanding. they peopled the earth with gods to be propitiated and appeased. everything was the act of a special providence. from early times religion and witchcraft furnished the chief subjects for the criminal code.
the penalties for the violation of the code were always severe, generally death, and by the most terrorizing ways. no other crime could be so great as to arouse the anger of the gods, and naturally no other conduct should demand so severe a penalty as calling down the wrath of the gods. this would fall not only upon the offending man, but upon the community of which he was a part. even as man developed in knowledge and civilization, this sort of crime continued to furnish the greater proportion of victims and the most cruel punishments. torture of the most fiendish sort was evoked to catch offenders and extort confessions. difference of religious opinions was the worst crime. the inquisition became an established thing. sometimes a nation was almost wiped out that heretics should be killed and heresies destroyed. the heretic was the one who did not accept the prevailing faith. the list of victims of punishment on account of religion, witchcraft, sorcery and kindred laws has in the past no doubt been larger than for any other charges.
this kind of laws always called out the greatest zeal in their enforcement. to the religious enthusiast nothing else was of equal importance. it involved not only the life of man on earth but his life through all eternity. our statutes today are replete with such crimes, but the punishments have been lessened and, as a rule, communities will not enforce them. but laws against blasphemy, working on sunday, and sunday amusements of all sorts, are still on the books and enforced in some places. a large organization and an influential and aggressive part of the christian church are insisting that these laws shall be enforced to the limit and that still others shall be placed among the statutes of the several states.
the methods of inflicting the death penalty have been various, the favorite ways being burning, boiling in oil, boiling in water, breaking on the rack, smothering, beheading, crucifying, stoning, strangling and electrocuting. until the middle of the last century they were carried out in the presence of the multitude so that all might be warned by the example.
the number of crimes for which death and bodily torture have been the punishment can scarcely be recorded, and if they could it would be of no value. they would run into the hundreds and probably the thousands. a large part of these crimes are now obsolete. doubtless more men have been executed for crimes they did not commit and could not commit than for any real wrong of which they were guilty.
prisons came into fashion later than the death penalty, and as a form of punishment have gradually come to take the place of most death penalties. prisons in the past have been loathsome places and not much better than death. prisoners have been packed together so closely that life was almost impossible. to incarcerate victims in prisons has brought terrible punishment not only on the prisoners and their families, but indirectly on the state. no doubt through the years prisons have been gradually improved. many of their terrors have been banished. people have come to believe that even a prisoner should have some consideration from the state. penalties have likewise grown less severe and terms have been shortened, but this course has not been regular or constant; the public readily relaxes into hatred and vengeance, and it is easy to arouse these feelings in men, since they lie very close to the surface. a constant struggle has always been waged by the humane to make man more kindly, and yet probably his nature does not really change. a few months of frenzy may easily undo the work of years.
so long as men punish for the sake of punishment, there will be a disagreement between the advocates of long punishment and short punishment, hard punishment and light punishment. from the nature of things, there is no basis on which this can be determined. the only thing that throws any light on the question is experience, and men can always differ as to the lessons of experience. neither do they remember experience when feelings are concerned.
punishment can deter only on the ground of the fear that flows from it. fear comes from things that are more or less unusual. man has little abstract fear of a natural death; it is so unavoidable that it does not even figure in the ordinary affairs of life. extreme punishments may grow so common that few give them any concern. they probably are so common now that the impression they make is not very great. lighter and easier punishments would have the same psychological effect. in many cases a lenient punishment would also eliminate much of the hatred and bitterness against the world that are common to all inmates of prisons.
