Forms for the dispensation of justice judg ing of crimes, determining of punishments de veloped into judicial procedure, which for a long time bore a religious character. The Deity was called upon to decide as to 'right' and (wrong.* Hence those terrible judgments of God through trial by water, fire, poison, ser pents, scales combat or decision by divining eye, so close)y allied to the so-called trial by hazard. The cruel maltreatment of elderly people suspected of witchcraft in early New England is familiar to all. A peculiar variety of ordeal is that of the bier, according to which the body of a murdered man is called into re the soul of the victim assisting in the discovery of the murderer. An advance inpro gress is the curse, which takes the place of the ordeal. Thus arise those ordeals by invocation and by oath with compurgators. Witnesses suc ceeded to conjurors; divining looks were re placed by circumstantial evidence ; and instead of a magical, a rational method of obtaining testi mony was adopted. This development was not attained without certain attendant abuses; and the abolition of ordeal by God was among many peoples, notably among the inhabitants of east ern Asia, some tribes of American Indians and the Europeans of the early Middle Ages, suc oeded by the introduction of torture! Years ago August Comte maintained that the institu tion of slavery was the greatest single step up to his day in the progress of human culture, since it superseded a great amount of slaughter, with or without cannibalism. The practice of eating the criminals, which is quite a common form of cannibalism, seems to be largely due to revenge or indignation. In Lepers Island, in the New Hebrides, the victims of it were not generally enemies who had been killed in fighting, but it was a murderer or a particularly detested enemy who was eaten in anger and to treat him ill. In many lands torture stood in close connection with the judgment of God. That this is so is no more remarkable than the fact that religious intolerance which accom panied the rise of monotheism was the result of the nature attributed to its God. Torture in other cases originated either directly or in directly from slavery. To obtain evidence by torture the accused person was forced through physical suffering to make disclosures concern mg himself and his companions; and in case he himself was considered guilty, to a con fession.
The development of Hebrew teaching on the subject will reveal the stages through which the notion of °justice° passed. First there is the injunction to moderate vengeance and lex talionss appears with its demand for an °eye for an eye .° Second, we must leave vengeance to rulers. And lastly, 'love your enemies, do good to those who despitefully use you, for give as you hope to be forgiven.' Retaliation is finally seen to be a continua tion of a moral disease; not a cure. The idea of loving one's enemies is found in the books of Saint Matthew, Saint Luke and Saint Mark; Lao-Tsze and Mang-Tsze voiced these sentiments in ancient China; we find them expressed in the Brahman Laws of Manu; Buddha taught that the hatred and revenge is not appeased by hatred (it ceases by non hatred only) ; we find the same notion in Leviticus, Plato, Pliny and Epictetus, taught it to the classical world; and in the same spirit Jesus taught in His Sermon on the Mount; aYe have heard that it bath been said: An eye for an eye, and a tooth for a tooth: But I say unto you, That ye resist not evil.' We only point out the truth of the sentiment which prompted these sayings and which should be expressed in the sentence: °resist not evil with evil.' Evil must be resisted; but we must not retaliate. The rule of retaliation and the rule of forgiveness are not so radically opposed to each other as they appear to be. What the latter condemns is in reality not every kind of resentment, not impartial indignation; but personal hatred. Jesus himself certainly was not free from righteous indignation. More over the belief in a transcendental retributive justice, in an ultimate puniOment of badness which we meet with in Taoism, Brahmanism, Buddhism and Christianity, side by side with the doctrine of forgiveness is founded on the demand that wrong should be resented. What is taught by all the great teachers who have been mentioned is good will to the good and to the bad alike. This is based on the con sideration that all creatures, both good and bad alike, are ultimately products of circum stances; and, therefore, that the bad deserve compassion, not hatred. A novelist (George Eliot) has told us that it was the °illusion° of one of her characters that he trusted °in his own skill to shape the success of his own mor rows, ignorant of what many yesterdays had determined for him beforehand.* The modern
Italian school of criminology strikes this note again and again; it is a diapason whose slow and solemn vibrations, communicated to their own meditations, all readers of the literature of the new criminological determinism of Italy, will recall.
The laws of ancient Rome still command respect and in cases obedience in many civil ized communities. We note the following pun ishments meted out to the offender in ancient Rome: There was the mulcta, or fine; vincula, imprisonment or fetters; verbera, or stripes; teas°, or infliction of punishment similar to in jury, limb for limb; infamia, public disgrace, by which the delinquent, besides being scandalized, was rendered incapable of holding public office and deprived of other privileges of Roman citizenship; exilium, banishment (aquae et ionic interdictio accomplished this) ; servstus, or slav ery; ',tors, death either civil or natural (banish ment and slavery are civil death?. Natural death was brought about by beheading, scourg hig, strangling or throwing the criminal headlong from the Tarpeian rock, or from the place in a prison, from the Robur. Many have been the changes. Capital punishment has ceased to be a retaliation and has become more and more a mere protection against the repetition of a crime. As it would be wrong to leave a tiger abroad so a man who by his very nature is a murderer should not be allowed to remain at liberty. Since imprisonment is on the one hand not a sufficient guarantee for the safety of society and on the other hand is perhaps a more cruel treatment than death, capital punishment remains, under our present civilization, still a necessity of our penal code. Yet in all this the attempt is no longer made, to retaliate on the murderer the cruelties which he has committed; it is a maxim that the death punishment should be inflicted with as little pain as possible. The infliction of pain is not an act which men now regard with indifference, even in the case of the criminal, and to many enlightened minds it has appeared both unreasonable and unjust and cruel that the state should wilfully torment a criminal to no purpose. But while retributive punishment has been condemned, punishment in a new sense has been defended and looked upon in a different light, not as an end in itself, but as a means. It is to be inflicted not because wrong has been done but in order that wrong may not be done. Its object is held to be either to deter from crime or to reform the criminal and by means of elimination or seclu sion to make it impossible for a criminal to commit fresh crimes. In the case of capital punishment the criminal is simply no longer allowed to live and it has ceased to be a re venge or retaliation. It has become a cure founded on the experience that a man who com mitted one murder is likely to commit a second murder. Hence a man who has killed another not on account of his innate or inbred murder ous inclination, but through the unhappy com plication of circumstances (under an unwritten law), will not be treated as an habitual mur derer; and according to the laws of all civil ized countries is not punishable by death.
Behind bars no criminal ought to be pam pered, but should receive prison fare and prison treatment in accord with the regula tion of the place where his deeds have brought him. For all this is curative. An execution for murder is merely the removal of a danger ous member from society and this for the same reason that a limb of the body infected by in curable disease must be amputated. Some re cent tendencies by some well-meaning people are so naive that one is tempted to call them childish; the conventions of society cannot be abandoned to alleviate the sufferings of crimi nals. To do so would be to act about as logi cally as it would be to abandon all medicine that leaves a bad taste in a patient's mouth. At the same time most lawyers might well remember that life is preferable to rules of health and that not a few of our laws are capable of becom ing outgrown. Our penal laws are not as yet fully adapted to the new view. All our minor punishments are still retaliatory, which fact makes our prisons all too frequently breeding places of crime and vice, instead of what they ought to be, namely, moral hospitals. Perhaps a just test of any penal system is to be found in the quality of afischarged convicts, and accord ing to Mr. Eugene Smith, president of the Prison Association of New York it is a notori ous fact that the most desperate class of crimi nals consists of discharged convicts.