Considered etymologically the word punish ment would, it was hoped, throw some light upon 'what was uppermost in the minds of its advocates through the ages. That etymology is as follows: Punishment derives from Old French punir, which in turn comes from Latin punire, to punish, from poem, punishment, ex piation, pain; and this is from the Greek goitiO (poine), meaning quit-money or fine for blood spilled. The Greek word finds its cognate in the Sanskrit Ki, to repay, which is related to the Zendish kitha, penance, and kana, vengeance; these Aryan words are re lated to the Slavonic cena, a price. But valu able as these suggestions are one cannot expect, as Professor Wundt observes, to find much help from etymology; for ((the phenomena of language do not admit of direct translation back again into ethical processes. The ideas them selves are different from their vehicles of ex pression and here as everywhere the external mark (or word) is later than the internal act for which it stands* (Wundt).
Remembering all this, it may not be far out of the way to admit that punishments should be graduated according to the degree of harm of an to society and according to the attractiveness of the offense to the offender; and not out of a desire to set an example. Its intrinsic object is to remove the not the but the cause of danger and of pain.
Punishment, in Western countries and nowadays, is seldom applicable to civil actions though these also are followed by compulsory payments of moneys, or failing this, by depriva tion of property, liberty, etc. As the legal consequence of crimes, however, punishment consists chiefly of infliction of pain on the body; and this ranges from capital punishment, or death, down to imprisonment. In some in stances whipping is added; and formerly in military and naval offenses, flogging. In crimes of lesser degree, imprisonment or penal servi tude for a term of years is the punishment.
Since very early times a constant change in the treatment of punishment has been going on in civilized states. Its treatment may be di vided into two parts; in the first place there is detection, arrest, trial and acquittal or convic tion; in the second, treatment of the criminal after conviction. The acquisition by the state of the power to dispense of and to make and enforce law is one o the greatest events in the whole of human history. It is the treat ment of criminals after conviction that concerns us chiefly here; but as this penology can scarcely be understood in its development with out taking into consideration the other division of the treatment of called criminal pro cedure, we will approach it from this point of view.
The original motive in the treatment of offenders was that crude vengeance, the useful ness of which in maintaining the instinctive i idea of order in primitive societies has been often studied by sociologists. The danger of free vengeance is not alone that the injured may wreak out atonement upon the innocent, but also that the infuriated avenger will limit the punish ment he inflicts only by the degree of bitterness and hate he personally feels. In this way the
original culprit feels that the vengeance he has felt (and his friends join him in his feeling), that the excessiveness of his suffering, now in vites him to retaliate. Thus matters tend to grow worse and worse ; and soon family and clan are embroiled in a permanent and destruc tive feud. Then a want clamors for relief. It grows into a demand and the demand finds a spokesman for reform in the person of a chieftain or other leader. For the hopeless tendency to engender feuds leads to reforms by which the chieftain seeks to suppress private revenge. Then ((Vengeance is mine, I will re pay' is the claim of the savage ruler. It is at this point that we find the emergence of a primitive criminal and civil procedure in all peoples that have risen out of savagery to bar barism, and the earlier stages of civilization, for it is here that the offended party goes before a judge to demand adver sary. The purpose of this primitive court is to inflict such penalties that the injured party and bystanders will feel that justice has been done, so that these persons will be con tent to abstain from private revenge. Retribu tive justice means just such severity as group consciousness at this low stage_ of progress can witness with satisfaction. Next cupidity is' pitted against hate, for the influence of au thority is in favor of substituting redemption for penalties that kill or maim the fighting men of the tribe; and thus is instituted the cons positio, the wergild and other fines; that is where the complainant is willing and content to sell his right of vengeance.
Thus the realization of is from the beginning a social function. The idea of right being incorporated in the chieftain played an important part in bringing about the acquisition by the state of power to dispense justice; and moreover the religious tendencies worked to the same end. Wickedness was held to be an in jury to the deity, whose anger would be visited upon the entire land; a conception that lasted far down into the Middle Ages, and according to which the fate of Sodom and Gomorrah was held to be typical of the effect of the curse from God. Already in primitive times religion led to a strange idea of justice; secret societies conse crated by the deity (Dukduk, Egbo) took upon themselves the function of enforcing 'right,* instituting reigns of terror in their districts, maintaining order in society and claiming authorization from the god with whose spirit they were permeated. Later influenced by all these tendencies, the social aggregate took over the control of justice. It was already considered to be the upholder of right, the serv ant of the gods, the maintainer of public peace, the dispenser of sacrifices; and so the various elements conceived of as justice, which had previously been distributed among the single families, tribes, associations, societies, were at last combined and placed under state control.